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Labarge v. Zebco12/20/1988
OUT 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 compensable impairment.
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 recognition 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.
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