Thursday, December 8, 2016

The Case of the Missing Doctor’s Declaration



The company-designated physician is duty-bound to timely issue to a repatriated sick or injured seafarer a declaration/ certification on his fitness for sea-service or a final disability assessment. Failure to do so would give rise to the conclusion that the seafarer’s disability is total and permanent.

In the case of Dario A. Carcedo (substituted by his wife Priscilla Carcedo) vs. Maine Marine Philippines, Inc. and/or Ma. Corazon Geuse-Songcuya (G.R> No. 203804, April 15, 2015), Carcedo, the seafarer, was medically repatriated due to a wounded foot. After his right big toe was amputated, the company-designated doctor recommended an impediment disability grading of 8 percent loss of the toe. Unfortunately, the suffering of Carcedo did not end as he again underwent medical procedure on his foot. He then sued for total and permanent disability benefits, sickness allowance and other damages. In the meanwhile, a doctor of his choice again operated of him and removed a secont toe. 

The arbiter supported the company-designated doctor’s findings while the NLRC, on appeal, awarded the Carcedo full disability benefits. The Court of Appeals however, upheld the 8% disability grading made by the company-designated physician in accordance with the CBA. Before the Supreme Court, Carcedo’s position was sustained and he was awarded the full disability compensation.

The Supreme Court made it clear that the seafarer’s right to disability benefits is governed not only by the Collective Bargaining Agreement and the POEA-Standard Employment contract enterd into by the parties, but also the provisions on disability of the Labor Code and the Amended Rules on Employee Compensation (AREC) implementing Title II, Book Code concept of permanent total disability applies to seafarers whereby it is not the injury which is compensated in a disability compensation matter, but rather the incapacity to work resulting in the impairment of one’s earning capacity.

The High Court pointed out that the declaration/ certification of the company-designated physician as to (a) the fitness of the seafarer to engage in sea duty or (b) his final disability assessment, during the 120-day or 240-day treatment period allows the employer to determine whether the seafarer is fit for sea duty or permanently disabled and the degree of such disability. The absence of such declaration/ certification transforms the temporary total disability status of the seafarer to permanent total disability, regardless of the disability grade. Thus, citing the case C.F.Sharp Management vs. Joel D. Taok (G.R. No. 193679, July 18, 2012), a seafarer may sue for total and permanent disability benefits if, among others, (1) the company-designated physician failed to issue said declaration even after lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability hence, justify an extension of the period to 240 days, and (2) 240 days had lapsed without any certification being issued by the company-designated physician.

The Supreme Court found the 8% disability grading assessment of the company-designated physician to be merely an interim one and not final since Carcedo continued with his medical treatments beyond the 120-day period and the extended temporary disability period of after 120-day period but less than 240 days. No definitive impediment rating of Carcedo’s disability was ever given. In the same token, the said 8% disability grading assessment did not include a certification of the seafarer’s fitness for sea duty, which ought to be the job of the company-designated physician.

#Article of Atty. Augusto R. Bundang of SVBB Law orignally published in the Tinig ng Marino July August 2015 issue.  

No comments:

Post a Comment