OP ALA, Vice Chief Justice.
The issues on certiorari are: 1) Did the trial judge correctly deny compensation upon failure of proof in claimant’s medical evidence to support a compensation award for permanent partial disability and, if so, 2) must the order nonetheless be vacated and the claim be remanded for the trial tribunal’s reconsideration? We answer both questions in the affirmative.
The claimant was injured while employed as a licensed practical nurse. To avoid being struck by a “combative” patient she turned away in a sudden movement, colliding with a door through which another employee was entering. Immediately injured were her head, eyes and neck. She later became mentally depressed and acquired a medication-induced liver disorder.
A hearing took place for the
sole
purpose of determining the claimant’s quest for permanent partial disability compensation.
The employer’s medical evidence, consisting mostly of deposition testimony,
was admitted without objection.
The claimant’s proof consisted of one deposition and several letter-reports, some of which served as mere exhibits to the deposition. While no objection was made at the hearing to the
admissibility
of the claimant’s medical evidence, the employer did — albeit in imprecise terms — timely challenge the
probative value
of the expert opinion’s evaluation of permanent partial disability.
The trial judge expressly postponed ruling on that question until he had reviewed the admitted deposition testimony of the claimant’s physician. The probative value issue was then implicitly resolved in the employer’s favor when the judge entered his order denying claimant compensation because
“there is no competent medical [evidence] to support an order for permanent partial disability.”
On appeal to a three-
judge panel, the order denying compensation was affirmed. This proceeding for review was brought by the claimant.
The Court of Appeals held that the claimant’s “medical evidence is competent to support an order for permanent partial disability.”
After deciding
sua sponte
that the
employer's
proof is “not competent,” the appellate court remanded the claim, directing the Workers’ Compensation Court to make an award
“based on the only competent medical evidence before it, claimant’s [own] medical
evidence.”
Upon the employer’s petition, we now grant certiorari.
I.
CLAIMANT’S PROOF OF PERMANENT DISABILITY LACKS PROBATIVE FORCE
The claimant’s medical expert gave her a “45% permanent impairment” rating and attributed it to the combined effect of her concussion, medication-induced liver ailment, mental depression and economic disability. The employer urges that this evaluation is not probative because 1) it is based, at least in part, on
future
impairment and 2) it results from an impermissible and unexplained deviation from the second edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” [Guides].
With
these contentions we agree, but, for the reasons explained in Part II of this opinion, the claimant must be given another opportunity to secure evidence upon which an award for permanent partial disability might be based.
During his deposition the claimant’s medical witness was asked what part of the overall 45% rating did he attribute to her liver problem. His response was:
“First of all, this is a very unusual case. Second, I did not find references to help break down any of the percentages. Therefore, in a manner that I’m used to, I collectively arrived at the 45 percent permanency, which includes a percent that I did not break down to give to the liver.”
He was then asked about the rating component attributable to the claimant’s depression:
Q. “ * * * The last time that you saw her, did any part of your 45 percent rating include some amount for depression?”
A. “Yes, it did.”
Q. “Was that amount based upon the fact that she might have more depression occurring in the future?”
A. “Yes, it did.”
Q. “Did she have a percentage measurable amount of depression at the time that you last examined her?”
A. “My experience is that in a depressive reaction, there are shades of gray, and I would liken it to a lighter shade.”
Q. “Did you find that she did have a percentage of impairment, permanent impairment — she was depressed permanently at the time that you saw her?”
A. “Yes.”
Q. “What percentage was that?”
A. “This is hard. I find this case to be so unusual, so different, yet present to the extent that it has been documented, yet allusive in the overall, not to be categorized in the AMA guides.”
Q. “You’re familiar with the fact that there is a mental disorder chapter under the AMA guides?”
A. “Yes.”
Q. “But, she didn’t fit under that chapter?”
A. “No, ma’am.”
An evaluation of permanent impairment for workers’ compensation purposes generally
must
be made by applying the standards prescribed in the Guides.
Deviations from the statutorily-mandated regime are not permissible without an adequate
medical
explanation.
Here, the expert’s admission that he deviated from the Guides poses the question whether his explicit reasons for so doing are legally sufficient. In light of the quoted portions of his deposition testimony, we hold they are not.
The claimant’s
medical witness never explained
what
was so “unusual” about the claimant’s condition that he could not apply the
mandatory
AMA standards for evaluating permanent impairment. Although he had stated the Guides’ chapter on mental and behavioral disorders was inapplicable to this case, he gave no medical grounds for his conclusion.
Moreover, the medical expert clearly attributes an
unspecified portion
of the impairment’s rating to a mental condition
he predicts
the claimant will have in the future. If a given rating be founded upon an evaluation made in terms of
futurity,
it is
not probative
of compensable permanent disability that may be awarded.
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OP ALA, Vice Chief Justice.
The issues on certiorari are: 1) Did the trial judge correctly deny compensation upon failure of proof in claimant’s medical evidence to support a compensation award for permanent partial disability and, if so, 2) must the order nonetheless be vacated and the claim be remanded for the trial tribunal’s reconsideration? We answer both questions in the affirmative.
The claimant was injured while employed as a licensed practical nurse. To avoid being struck by a “combative” patient she turned away in a sudden movement, colliding with a door through which another employee was entering. Immediately injured were her head, eyes and neck. She later became mentally depressed and acquired a medication-induced liver disorder.
A hearing took place for the
sole
purpose of determining the claimant’s quest for permanent partial disability compensation.
The employer’s medical evidence, consisting mostly of deposition testimony,
was admitted without objection.
The claimant’s proof consisted of one deposition and several letter-reports, some of which served as mere exhibits to the deposition. While no objection was made at the hearing to the
admissibility
of the claimant’s medical evidence, the employer did — albeit in imprecise terms — timely challenge the
probative value
of the expert opinion’s evaluation of permanent partial disability.
The trial judge expressly postponed ruling on that question until he had reviewed the admitted deposition testimony of the claimant’s physician. The probative value issue was then implicitly resolved in the employer’s favor when the judge entered his order denying claimant compensation because
“there is no competent medical [evidence] to support an order for permanent partial disability.”
On appeal to a three-
judge panel, the order denying compensation was affirmed. This proceeding for review was brought by the claimant.
The Court of Appeals held that the claimant’s “medical evidence is competent to support an order for permanent partial disability.”
After deciding
sua sponte
that the
employer's
proof is “not competent,” the appellate court remanded the claim, directing the Workers’ Compensation Court to make an award
“based on the only competent medical evidence before it, claimant’s [own] medical
evidence.”
Upon the employer’s petition, we now grant certiorari.
I.
CLAIMANT’S PROOF OF PERMANENT DISABILITY LACKS PROBATIVE FORCE
The claimant’s medical expert gave her a “45% permanent impairment” rating and attributed it to the combined effect of her concussion, medication-induced liver ailment, mental depression and economic disability. The employer urges that this evaluation is not probative because 1) it is based, at least in part, on
future
impairment and 2) it results from an impermissible and unexplained deviation from the second edition of the American Medical Association’s “Guides to the Evaluation of Permanent Impairment” [Guides].
With
these contentions we agree, but, for the reasons explained in Part II of this opinion, the claimant must be given another opportunity to secure evidence upon which an award for permanent partial disability might be based.
During his deposition the claimant’s medical witness was asked what part of the overall 45% rating did he attribute to her liver problem. His response was:
“First of all, this is a very unusual case. Second, I did not find references to help break down any of the percentages. Therefore, in a manner that I’m used to, I collectively arrived at the 45 percent permanency, which includes a percent that I did not break down to give to the liver.”
He was then asked about the rating component attributable to the claimant’s depression:
Q. “ * * * The last time that you saw her, did any part of your 45 percent rating include some amount for depression?”
A. “Yes, it did.”
Q. “Was that amount based upon the fact that she might have more depression occurring in the future?”
A. “Yes, it did.”
Q. “Did she have a percentage measurable amount of depression at the time that you last examined her?”
A. “My experience is that in a depressive reaction, there are shades of gray, and I would liken it to a lighter shade.”
Q. “Did you find that she did have a percentage of impairment, permanent impairment — she was depressed permanently at the time that you saw her?”
A. “Yes.”
Q. “What percentage was that?”
A. “This is hard. I find this case to be so unusual, so different, yet present to the extent that it has been documented, yet allusive in the overall, not to be categorized in the AMA guides.”
Q. “You’re familiar with the fact that there is a mental disorder chapter under the AMA guides?”
A. “Yes.”
Q. “But, she didn’t fit under that chapter?”
A. “No, ma’am.”
An evaluation of permanent impairment for workers’ compensation purposes generally
must
be made by applying the standards prescribed in the Guides.
Deviations from the statutorily-mandated regime are not permissible without an adequate
medical
explanation.
Here, the expert’s admission that he deviated from the Guides poses the question whether his explicit reasons for so doing are legally sufficient. In light of the quoted portions of his deposition testimony, we hold they are not.
The claimant’s
medical witness never explained
what
was so “unusual” about the claimant’s condition that he could not apply the
mandatory
AMA standards for evaluating permanent impairment. Although he had stated the Guides’ chapter on mental and behavioral disorders was inapplicable to this case, he gave no medical grounds for his conclusion.
Moreover, the medical expert clearly attributes an
unspecified portion
of the impairment’s rating to a mental condition
he predicts
the claimant will have in the future. If a given rating be founded upon an evaluation made in terms of
futurity,
it is
not probative
of compensable permanent disability that may be awarded.
A
present
condition may be considered
in terms of its future effect
on the claimant,
but an impairment rating may not be ascribed to a doctor’s speculation about an
expected or future
symptomatology. We hence conclude that the expression of anticipated futurity robbed the claimant’s evaluation of probative value.
II.
THE CLAIM MUST BE REMANDED FOR RECONSIDERATION
When the employer challenged the probative value of the claimant’s medical evidence, the trial judge postponed his ruling on that issue. On this record, we presume it was not until the claimant had received a copy of the order denying her permanent disability compensation that she learned of her fatal evidentiary void. This is not a case in which the employer’s medical evidence was found to have been more persuasive or believable than that of the claimant. The denial of permanent disability award was not rested here on a judicial finding of no impairment, but rather on a
complete failure of claimant’s medical proof
as to her compensable rating. Whether and to what degree the claimant is permanently impaired is an issue that has yet to be determined.
The employer’s probative value challenge operated as the functional equivalent of a district court demurrer to that part of claimant’s evidence which adduced an expert opinion as to the
extent
of her compen-sable permanent partial impairment. Indeed, no other acceptable counterpart of a nisi prius demurrer is available in the Workers’ Compensation Court for challenging the legal sufficiency of a party’s evidence or of some essential element to support or defend against the claim.
Here, the trial tribunal in essence found only that its order could not rest
on claimant’s evidence alone
for a decision on whether she is or is not permanently disabled, since she utterly failed to adduce any probative medical evidence to establish a compensable disability rating. The claimant should have been
either
allowed to substitute another evaluation for the flawed rating
or
invited to stand on her proof.
Because this claimant was given no opportunity either to stand on her adduced medical evidence or to secure a replacement for the flawed but apparently curable
evaluation,
this claim must be remanded for reconsideration in a manner consistent with today’s pronouncement.
CERTIORARI IS GRANTED; THE COURT OF APPEALS’ OPINION IS VACATED; THE TRIAL TRIBUNAL’S DENIAL OF PERMANENT DISABILITY COMPENSATION IS VACATED;- THE CLAIM IS REMANDED FOR RECONSIDERATION IN FURTHER PROCEEDINGS.
HARGRAVE, C.J., and HODGES, LAVENDER, DOOLIN and SUMMERS, JJ., concur.
ALMA WILSON, J., concurs by reason of stare decisis.
KAUGER, J., concurs in result.
SIMMS, J., dissents.