In the event of disagreement on the services of the third doctor,
the seafarer has the right to institute a complaint for disability benefits directly before the
National Labor Relations Commission (NLRC) or the National Conciliation and Mediation
Board (NCMB)
This is the ruling of the Supreme Court in the recent case of Reynaldo Sunit vs. OSM (G.R. No. 2230, February
27, 2017) . The language
of the POEA-Standard Employment
Contract (SEC) is clear in that both the seafarer and the employer
must mutually agree to seek the
opinion of a third doctor. In many instances, the NLRC/ NCMB and appeal courts dismiss
the compensation claims of seafarers for alleged “non-compliance” with the
third doctor opinion rule.
During
his employment, the seafarer fell from the vessel's
tank approximately 4.5 meters high and suffered
a broken right femur. He was diagnosed to have suffered "Fractured, Right
Femur; SIP Intramedullary Nailing,
Right Femur." The seafarer was repatriated on October 6, 2012. After undergoing medical treatment, the company-designated doctor issued an interim Grade 10 disability on January 13, 2013. The seafarer was then issued with a final Grade 10 disability by the company-designated doctor on February
15, 2013. Prior to the February
15, 2013 assessment, the seafarer consulted the opinion of a second doctor,
Dr. Garduce, who recommended a Grade 3 disability.
Both parties then consulted
a third doctor to assess the
seafarer's degree of disability, who assessed seafarer with a Grade 9 partial disability on February 17, 2014, 499 days from his repatriation. In addition to the
partial disability grading,
Dr. Bathan likewise
assessed the seafarer as unfit to work and recommended him to undergo
further rehabilitation.
The parties do not dispute
that seafarer's injury
was work-related and that he is entitled
to disability compensation. The disagreement, however,
lies on the degree of disability and amount of benefits that petitioner is entitled.
A final and definite disability assessment is necessary
in order to truly
reflect the true extent of the sickness or injuries
of the seafarer and his or her capacity to resume work as such. Otherwise, the corresponding disability
benefits awarded might not be commensurate with the prolonged
effects of the injuries suffered.
The Supreme Court recapitulated the procedural requisites under the rules
and established jurisprudence where the parties
opt to resort to the opinion of a third doctor:
First, according to the POEA-SEC and as established by Vergara,26 when a seafarer
sustains a work-related illness or injury while on board the vessel, his fitness
or unfitness for work shall be determined by the company designated physician.
Second, if the seafarer
disagrees with the findings of the company doctor, then he has the right to engage the services of a doctor of his choice. If the second doctor appointed by the seafarer
disagrees with the findings of the company doctor, and the company likewise
disagrees with the findings of the second doctor, then a third doctor may be agreed jointly
between the employer and the seafarer,
whose decision shall be
final and binding on both of them.
It must be emphasized that the language
of the POEA-SEC is clear
in that both the seafarer
and the employer
must mutually agree to seek the
opinion of a third doctor. In the event of disagreement on the services
of the third doctor,
the seafarer has the
right to institute
a complaint with the LA or NLRC.
Third, despite the binding effect of the third doctor's
assessment, a dissatisfied party may institute a complaint with the LA to contest
the same on the ground
of evident partiality, corruption of the third doctor, fraud, other undue means,lack of basis to support the assessment, or being contrary
to law or settled jurisprudence.
Permanent disability is defined as the inability
of a worker to perform his job for more than 120 days (or 240 days, as the case may be), regardless of whether or not he loses the use of any part of his body. Total disability, meanwhile,
means the disablement of an employee
to earn wages in the same kind of work of similar
nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.
As the seafarer was actually
unable to work even after the expiration of the 240-day period
and there was no final
and conclusive disability assessment made by the third doctor on his medical
condition, it would be inconsistent to declare him as merely permanently and partially disabled. It should be stressed that a total disability does not require
that the employee be completely disabled, or totally paralyzed. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity
to work resulting in the impairment of one's earning capacity
