Beets v. Metropolitan Life Insurance Co.

*1077OPALA, J.,

with whom LAVENDER, J., joins dissenting to denial of rehearing.

¶ 1 The court rewards today an employer who belatedly tendered a facially deficient medical report by rejecting the claimant’s timely probative-value objection for the failure of that in-court challenge to meet a new standard of specificity — one tougher than that fashioned in Gaines.1 I cannot accede to today’s pronouncement. It will impose a significant burden without providing a correlative benefit to the judicial decision-making process. Today’s tougher standard sub silen-tio demands that one’s objection to a medical report cite a specific page and paragraph number from the AMA Guides.2

I

THE ANATOMY OF LITIGATION

¶ 2 At the hearing below claimant objected in two respects to the probative value of the employer’s medical evaluation by uttering these words: “Dr. Farrar [employer’s medical expert] did not find 'permanent impairment as a result of a surgically treated disc lesion, nor did he provide for any impairment as a result of motor weakness into the left lower extremity, [emphasis supplied]”3 Claimant also challenged the medical report for being untimely. The trial tribunal immediately disposed of the objections stating: “I’m going to overrule your probative value objection. I’m also going to overrule your Rule 19 objection.”4 Without interruption, the judge and claimant discussed the Perlinger “jackpot rule”5 — banished by the Gaines6 decision — as it would affect the claimant’s timeliness objection. The judge then assured claimant that a sufficient record had been made of her objections.7 The Court of Civil Appeals vacated the trial judge’s award, ruling that the claimant’s timeliness objection should have been sustained.

¶ 3 This court’s opinion on certiorari sustains the trial tribunal’s award. It holds firstly that a tardily proffered medical report may be admitted in the exercise of the court’s discretion. Secondly, in a brief footnote the court rejects the probative-value challenge based on its view that claimant had failed to preserve the evidentiary issue by a timely objection that meets the law’s standard of specificity,8 It is the court’s second notion from which I am in dissent.

II

CLAIMANT DID PRESERVE FOR CORRECTIVE RELIEF THE TRIAL TRIBUNAL’S DENIAL OF HER TIMELY PROBATIVE-VALUE OBJECTION

¶4 Advanced at the hearing, claimant’s objection focused on two specific legal defi-*1078cieneies in the respondent’s medical report: the physician’s failure to rate her impairment from (a) a surgically treated disc lesion, and (b) from motor weakness into the lower left extremity. The trial tribunal immediately ruled on the objection and foreclosed further discussion, giving no indication that there might have been a misunderstanding as to the essence of claimant’s challenge. Claimant’s argument before the Court of Civil Appeals was modeled after the probative-value objection earlier interposed before the tribunal and merely advanced the chronology of medical treatment and surgical procedures claimant had undergone.9 When this court erased claimant’s Court of Civil Appeals victory by sustaining the trial tribunal’s timeliness ruling, she sought rehearing. She once again pressed her probative-value objection, arguing (in her supportive brief) in substantially the same fashion as she did before the trial tribunal as well as in the earlier brief.10 Because the Court of Civil Appeals did not address the probative-value objection when it decided the case in claimant’s favor, this court on certiorari, is duty-bound to now reach and resolve that undecided issue pressed before us by the Court of Civil Appeals’ loser.11

Ill

THE LAW THAT GOVERNS THE SUFFICIENCY OF PROBATIVE-VALUE OBJECTIONS

¶ 5 Gaines established the rule that an objection to a medical report must be made in specific terms.12 This requirement affords the trial tribunal an opportunity to correct its mistakes and preserves a record that allows the reviewing process to focus on the contested infirmity of a medical report without having to conduct a generalized search for errors.13 In accordance with the Rules of the Workers’ Compensation Court, an objection “must state the specific provision of Rule 20 [now Rule 23] and/or the AMA Guides which is the basis of the objection.”14 Gaines supplied several examples of properly phrased objections, none of which requires an eviden-tiary challenge to cite a specific page number of the AMA Guides.15 Gaines demands no *1079more than that a party phrase an objection with clarity and brevity.

¶ 6 Today’s analysis utterly ignores the obvious legal verity — there is a limit to the Gaines-mandated specificity. Gaines yields its mandate through the ttóct’s examples. The objecting party must bring the defect to the trial tribunal’s attention with a degree of specificity that would allow the challenged deficiency to be assessed and the trial tribunal to craft a remedy (if possible).16 The AMA Guides as well as this court’s precedent make clear that an impairment rating is mandated for both aspects raised by claimant’s probative-value objection: (a) motor weakness into the lower left extremity, and (b) a surgically treated disc lesion.17

¶ 7 The law’s requirement that there be both clarity and brevity in evidentiary objections is not unique to the compensation jurisprudence.18 This is the model obtaining throughout the Anglo-American legal system, grounded as it is in ancient common-law antecedents. The objection primarily serves to inform the court that something is wrong with the offering party’s proof.19 Once correctly lodged, an objection will save the court’s search of the entire record and enable the judge immediately to examine the assailed part.20

¶ 8 The common law also teaches that a specific objection will afford the offering party an opportunity to defend or cure the proffered proof.21 Today’s decision fails to notice these two distinct functions: an objecting party initially sets forth a specific grievance against the proffered evidence; then, both the objector and the offering party may follow with an argument elucidating their positions *1080with respect to the challenged proof.22 Oblivious to the ancient process of the Anglo-American law, the court today requires instead that the objecting party, whether invited or not, at once support its challenge by a lengthy argument cum citation to the books of authority. The court’s model is antithetical to efficient and established courtroom procedure.23

IY

SUMMARY

¶ 9 I cannot join today’s opinion. The court correctly disposes of the claimant’s timeliness challenge, yet utterly ignores her timely and cogent probative-value objection. The latter challenge should be discussed and upheld on certiorari. This is so because it: (a) was timely interposed, (b) sufficiently identified two specific deficiencies in the proffered medical report, and (c) was duly preserved for corrective relief on review by successive arguments advanced in claimant’s briefs, both here on certiorari as well as before the Court of Civil Appeals.

¶ 10 The trial judge’s order should be vacated with directions to sustain claimant’s probative-value objection to the medical report; the claim should be remanded to the trial judge with directions to proceed in a manner consistent with this court’s analysis of the evidentiary process.

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

. American Medical Association, Guides to the Evaluation of Permanent Impairment, (4th ed. 1993) [AMA Guides],

. Trial transcript from 7 May 1998; page 20, lines 24-25 and page 21, lines 1-3.

. Id. at page 21, lines 4-6.

. The so-called Perlinger "jackpot rule” permitted a party seeking corrective relief from a permanent impairment award to defer raising specific objections to the opposing party’s medical evidence until appeal stage or until review proceedings. Perlinger v. J.C. Rogers Constr. Co., 1988 OK 33, 753 P.2d 905, 907. If the objecting party’s challenge was successful on review, its medical proof became the only evidence available for the claim's disposition.

. Gaines, supra note 1 at 1081.

. Trial transcript at page 22, line 25 and page 23, line 1.

. The pertinent parts of Rule 23, Workers' Compensation Court Rules, 85 O.S.Supp.1995, Ch. 4, App., are:

A. All challenges to the legal sufficiency of the opposing party’s evidence shall be made by specific objection at the time of trial or shall be deemed waived.
S¡8 ⅜ # ⅝ ⅝ *
C. An objection to medical testimony offered by a signed, written, verified or declared medical 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, shall be interposed at the same time it is offered into evidence....

. According to claimant’s brief in chief, p. 16:

Petitioner [claimant] objected stating Dr. Far-rar failed to provide impairment according to the AMA Guides in that he failed to provide impairment of five percent (5%) as a result of a surgically treated fracture of the posterior elements, i.e. laminae, ten percent (10%) as a result of a surgically treated disc lesion with residuals and five percent (5%) from residuals of right iliac crest bone graft harvesting. Dr. Mayoza [claimant’s expert] in his operative report of May 16, 1997, enumerated he performed an extensive left hemilaminectomy and partial facetectomy, L4-5, left with lumbar disc excision and posterior lumbar interbody fusion using right iliac bone graft and Songer cable for posterior lumbar interbody fusion and lateral mass fusion.

. The text of claimant’s rehearing petition, p. 4, states:

Petitioner [claimant] enumerated an objection for failing to provide impairment to a surgically treated disc quoting specific language from the AMA Guidelines to Permanent Impairment, Fourth Edition, page 313, Table 75 II E and for motor weakness quoting language from page 49, Table 12 and page 130 Table 83.... Dr. Farrar’s report is not probative and therefore not competent to support the trial court’s order because it fails to provide impairment as a result of a surgically treated disc lesion with residuals and residuals of right iliac crest bone graft harvesting.

. Hough v. Leonard, 1993 OK 112, 867 P.2d 438, 445-46, amended the Rules on Practice and Procedure in the Court of Appeals and on Certio-rari to that Court (now Oklahoma Supreme Court Rules, 12 O.S.Supp. 1997, Ch. 15, App.1, Part V) by crafting its pronouncement in these words:

When a petition for writ of certiorari to review a decision of the Court of Appeals is granted, an order shall be entered to that effect. Issues not presented in the petition for certiorari will not be considered by the Supreme Court. Provided, however, if the Court of Appeals did not decide all of the properly preserved and briefed issues, the Supreme Court may — should it vacate the opinion of the Court of Appeals — address such undecided matters or it may remand the cause to the Court of Appeals for that Court to address such issues,

(emphasis added).

. Gaines, supra note 1 at 1080.

. Id. at 1081. See also H. Perilstein, Inc. v. Stewart, 1968 OK 5, 437 P.2d 253, 256.

. Gaines, supra note 1 at 1080.

. The Gaines examples are:

*1079... [I]f 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....

Gaines, supra note 1 at 1080.

. McDonald v. Strawn, 78 Okl. 271, 190 P. 558, 562-563 (1920).

. Guides to the Evaluation of Permanent Impairment, supra note 2, at 130 (establishing impairment rating for motor weakness into the lower left extremity); Guides to the Evaluation of Permanent Impairment, supra note 2, at 113 (setting forth impairment rating for surgical disc lesion procedure); LaBarge v. Zebco, 1988 OK 147, 769 P.2d 125, 126-27 (declaring that each operated disc requires a minimum 5% impairment rating).

. Oklahoma statutes mandate as much: "[i]f the ruling is one admitting evidence, a timely objection or motion to strike [shall appear] ... of record, stating the specific ground of objection, if the specific ground was not apparent from the context.” 12 O.S.1991 § 2104(A)(1) (emphasis added).

. See, e.g., Cady v. Norton, 31 Mass (14 Pick.) 236, 237 (1833) quoted in I John Henry Wigmore, EVIDENCE § 18 at 793 (Tillers rev. 1983):

[TJhe right to except [i.e., object] is a privilege, which the party may waive, and if the ground of exception is known and not seasonably taken, by implication of law, it is waived. This proceeds upon two grounds; one, that if the exception is intended to be relied on, and is seasonably taken, the omission may be supplied, or the error corrected, and the rights of all parties saved. The other is, that it is not consistent with the purposes of justice, for a party knowing of a secret defect, to proceed and take his chance for a favorable verdict, with the power and intent to annul it, as erroneous and void, if it should be against him.

. See, e.g., Rush v. French, 1 Ariz. 99, 25 P. 816, 822, 823 (1874) quoted in I John Henry Wigmore, EVIDENCE § 18 at 819 (Tillers rev. 1983):

[A] party wishing the benefit of the remedy must, at the time he complains, show how he is hurt; in the language of the old authorities, he must lay his finger upon the point of objection. ... He must not merely complain in a general way, and say that to let certain evidence in will hurt his case, and that under the law it ought to be excluded, and leave the judge and opposite side in the dark as to what principle of law he relies on, and compel them to decide haphazard, or else stop the trial of the cause.. .while the counsel examine the whole body of the law, from the earliest judicial expositions down to the latest act of the legislature, to see if they can discover any valid objection to the testimony.

. Id. at 822 (“When evidence is offered to which there is some objection, substantial justice requires that the objection be specified, so that the party offering the evidence can remove it, if possible, and let the case be tried on its merits").

. I John Henry Wigmore, EVIDENCE § 18 at 832 and 841 (Tillers rev. 1983).

. See, e.g., Tews v. Husqvarna, 390 N.W.2d 363, 367 (Minn.Ct.App. 1986)(hoIding that objecting counsel is entitled to set forth an objection but cannot automatically argue the merits of the objection nor the correctness of the court's decision on the objection without permission of the court); Massachusetts Rules of Court, Rules of the Superior Court, General Provision, Rule 8 Objections to Evidence (stating that "[i]n civil actions ... if a party objects to the admission or exclusion of evidence, he may, if he so desires, state the precise grounds of his objection; but he shall not argue or further discuss such grounds unless the court then calls upon him for such argument or discussion.”) (emphasis added); see discussion of authorities in 6 AmJur: Trials § 11, p. 618 (explaining that "[c]ounsel should not begin to argue the merits of the objection until the court invites him to do so, and he should wait until his opponent is seated before standing to address the court.”)