Credibility of findings of company doctors

The findings of the  company-designated physician  do not always  bind the courts in determining the merits of compensation cases filed Filipino  seafarers.  

In most seafarer cases for disability or death benefits claims, one of the arguments often raised by the companies  or the insurance correspondents    is that they are not liable to pay benefits by pointing to the medical reports of the company-designated physician that the seafarer’s illness is not work-connected, that he is fit to work or that the compensation is limited to a lower amount based on a low disability grading.  They point out that   the POEA mandated that  the seafarer’s disability can only be assessed by the company-designated physician considering that the latter had the time and the opportunity to constantly monitor the health and physical condition of the seafarer

In the recent case of Magsaysay vs. Oliver Buenaventura ( G.R. No. 195878. January 10, 2018),   the seafarer  met an accident wherein  a mooring winch crushed his right hand. As a result, he suffered a fracture of the right first metacarpal bone and open fracture of the right second metacarpal  bone, which required  emergency  surgical procedures  both done in Japan and  he was later  medically repatriated. After six months, the company doctor declared him fit to work after undergoing conservative management, continuous rehabilitation physiotheraphy, and occupational therapy. He filed a case for disability benefits.

The Supreme Court denied the claims  for disability benefits of the seafarer as it stressed that  failure to refer the conflicting findings between the company-designated physician and the seafarer's physician of choice grants the former's medical opinion more weight and probative value  over the latter.

Nevertheless, the Supreme Court noted that it does not mean that the judicial bodies  should adopt it hook, line and sinker as it may be set aside if it is shown that the diagnosis of the company-designated physician  is attended with clear bias, has no scientific basis or are not supported by the medical records of the seafarer. 

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The Court also pointed out in a case that “their findings cannot be taken as gospel truth” due to the proliferation of obviously biased company doctors whose loyalty rests completely upon the company they serve and these “are palpably self-serving and biased in favor of petitioners and certainly could not be considered independent”(Wallem vs.NLRC 318 SCRA 623,  United Philippine Lines, Inc. and/or Holland America Line, Inc., vs. Francisco D. Beseril, 487 SCRA 249).

The 120/240 day rule on seafarer's disability cases

The number of days under medication is a significant element in determining the disability benefits of  a seafarer who was a medically repatriated.  

The  seafarer's standard employment contract of the Philippine Overseas Employment Administration (POEA)    enumerates under Section 20(A)(3) the three classes of benefits the seafarers are entitled to if the illness or injury is considered as work connected:

  (a)     sickness allowance not to exceed 120 days of  basic wage.

 (b)     medical expenses until such time he is declared fit or the degree of his disability has been    established by the company-designated physician.

  (c)     compensation in accordance with the    schedule of benefits governed by the rates and the rules        of compensation. 

In many instances, the period within which the company-designated physician  issues a final medical assessment on the seafarer's disability grading is a contentious factor  in the determination of compensation due to the seafarer. 

The  Supreme Court  laid down (Elburg Shipmgt.  Phils vs. Ernesto Quiogue, G.R. No. 211882, July 29, 2015)     the following guidelines that shall govern seafarers' claims for permanent and total disability benefits:

1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.

Under the prevailing doctrine on disability claims of Filipino seafarers. when the company-designated physician makes an assessment of the seafarer’s disability rating within the period of 120 days from medical repatriation, such assessment becomes final. 

The additional 120 days (or a total of 240 days) from repatriation is given to the company-designated physician to provide further treatment to the seafarer and, “thereafter, make a declaration as to the nature of the latter’s disability.”


Failure to obtain any gainful employment for more than 120 days after his medical repatriation, or inability to continue his work as a seaman for the same period does not mean that a seafarer’s disability should be considered permanent and total.

The  Supreme Court further clarified that for the company-designated physician to avail of the extended 240-day period, he must first perform some significant act to justify an extension (e.g., that the illness still requires medical attendance beyond the initial 120 days but not to exceed 240 days); otherwise, the seafarer's disability shall be conclusively presumed to be permanent and total. (Jebsens Maritime, et.al. v. Florvin Rapiz (G.R. No. 218871. January 11, 2017)

A seafarer is considered as  suffering permanent total disability if the medical statement of the company doctor  is  devoid of any definitive declaration as to the seafarer's  capacity  to return to work or at least a categorical and final degree of disability.

There is no "definitive assessment" where the company-designated physician noted that seafarer's wound was still open and that he was to continue his medications  (Carcedo v. Maine Marine Philippines, Inc G.R. No. 203804, April 15, 2015) If he fails to do so and the seafarer’s medical condition remains unresolved, the latter shall be deemed totally and permanently disabled.(Fil-Pride Shipping Company, Inc. v. Balasta,  G.R. No. 193047, March 3, 2014, 717 SCRA 624, 626) 

Such principle is more apparent in  event that  the seafarer  has remained unemployed as a seafarer for more than 240 days from the time of his repatriation  or he was unable to perform the same physical activities he used to perform prior to his injury.  ( Belchem Phils./UPL  vs. Eduardo  Zafra G.R. No. 204845               June 15, 2015) 

A total disability does not require that the employee be completely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue his or her usual work and earn from it.   (Fil-Star Maritime Corp., et.al. vs. Hanziel Rosete, G.R. No. 192686, November 23, 2011), Permanent disability is the inability of the worker to perform his job , regardless of whether or not he loses the use of any part of his body. (Philimare, Inc./Marlow Navigation Co., Ltd.,  vs. Benedicto Suganob, G.R. No. 168753, July 9, 2008,  )

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Three separate and distinct benefits of a medically repatriated seafarer.

The Filipino  seafarer is entitled to medical treatment at cost to the employer apart from disability benefits and

sickness allowance.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, the Filpino seafarer is physically, mentally and emotionally stressed. Constantly exposed to fluctuating temperatures caused by variant weather changes of extreme hot and cold as the ships cross ocean boundaries, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high.

           

The employer  is liable for  three separate and distinct  kinds of liabilities under the  Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) for any work-related illness or injury that the seafarer may have suffered during the term of the contract. In other words, employers must: (1) provide   medical treatment to  the seafarer at their cost; (b) pay the seafarer sickness allowance equivalent to his basic wage  and (2) compensate the seafarer for his permanent total or partial disability as finally determined by the company-designated physician.

Section 20-B (2), paragraph 2, of the POEA-SEC entitles the seafarer  medical treatment that is aimed at the speedy recovery of the seafarer and the restoration of his previous healthy working condition. The contract  imposes on the employer the liability to provide, at its cost, for the medical treatment of the repatriated seafarer for the illness or injury that he suffered on board the vessel until the seafarer is declared fit to work or the degree of his disability is finally determined by the company-designated physician. This liability for medical expenses is conditioned upon the seafarer's compliance with his own obligation to report to the company-designated physician within three (3) days from his arrival in the country for diagnosis and treatment.

Since the seafarer is repatriated to the country to undergo treatment, his inability to perform his sea duties would normally result in depriving him of compensation income. To address this contingency, Section 20-B (3), paragraph 1, of the POEA-SEC imposes on the employer the obligation to provide the seafarer with sickness allowance that is equivalent to his basic wage until the seafarer is declared fit to work or the degree of his permanent disability is determined by the company-designated physician. The period for the declaration should be made within the period of 120 days or 240 days, as the case may be.

Once a finding of permanent (total or partial) disability is made either within the 120-day period or the 240-day period, Section 20-B (6) of the POEA-SEC requires the employer to pay the seafarer disability benefits for his permanent total or partial disability caused by the work-related illness or injury. In practical terms, a finding of permanent disability means a permanent reduction of the earning power of a seafarer to perform future sea or on board duties; permanent disability benefits look to the future as a means to alleviate the seafarer's financial condition based on the level of injury or illness he incurred or contracted.

 The Supreme Court emphasized the separate treatment of, and the distinct considerations in, these three kinds of liabilities in the case of Javier v. Philippine Transmarine Carriers, Inc..  (G.R. No. 2014101 July 2, 2014). The evident intent of the POEA-SEC is  to treat these liabilities of the employer separately and distinctly from one another by treating the different items of liability under separate paragraphs. These individual paragraphs, in turn, show the bases of each liability that are unique from the others.

Significantly, too, while Section 20 of the POEA-SEC did not expressly state that the employer's liabilities are cumulative in nature — so as to hold the employer liable for the sickness allowance, medical expenses and disability benefits — it does not also state that the compensation and benefits are alternative or that the grant of one bars the grant of the others.  

It is clear from the above that while a seafarer  is not entitled to total and permanent disability benefits, this does not rule out his right to the other benefits provided for under the POEA-SEC such as reimbursement for medical expenses, sickness allowance and benefit for partial disability caused by a work-related injury.

This formulation is in keeping with the POEA's mandate under Executive Order No. 247 to "secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith" and to "promote and protect the well-being of Filipino workers overseas. As a labor contract, the POEA-SEC is imbued with public interest. Accordingly, its provisions must be construed fairly, reasonably and liberally in favor of the seafarer in the pursuit of his employment on board ocean-going vessels. After all, the constitutional policy accords and guarantees full protection to labor, both local and overseas.

Atty. Dennis R. Gorecho  is a graduate of UP College of Law (1998)  and  is currently a junior partner of Sapalo Velez Bundang Bulilan (SVBB) law offices  who heads the seafarers’ division. He is a  speaker on  nationwide paralegal seminars on  seafarers rights.  He is presently the executive vice president of the Maritime Law Association of the Philippines (MARLAW),  and an active  member of the Maritime Forum Inc. , the National Seafarers Day (NSD) committee and International Pro Bono Network. The SVBB law works hand in hand with various seafarers welfare  organizations such as the Apostleship of the Seas (AOS) Philippines, Luneta Seafarers Welfare Foundation (LUSWELF) and United Filipino Seafarers (UFS) . He is a legal commentator on maritime issues on print, radio and TV. A co-anchor of the radio program Bantay OCW Usapang Marino aired over Radio Inquirer/ DZIQ every Wednesday 10:30am to 12noon. For comments, please send  email  at info@sapalovelez.com or call  09175025808/ 09088665786.

Seafarer’s incapacity to work: Defocusing the injury/illness

IS Grade 1 disability assessment always necessary for a seafarer to be considered totally and permanently disabled?

If a seafarer suffers a work-related illness/ injury and is declared unfit to work and assessed with Grade 1 disability, the seafarer is evidently suffering from a total and permanent disability, thus, entitled to corresponding benefits under the POEA Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On Board Ocean-Going Vessels (“POEA Standard Terms and Conditions”) or applicable collective bargaining agreement.

In case like the one above, the rules regarding the benefits of the seafarer are clear cut and unquestionable. However, there are number of cases when the disabled seafarer is assessed with disability lower than Grade 1, or temporary partial disability i.e., Grade 2 to14 under Section 32 of POEA Standard Terms and Conditions.

Notwithstanding the fact that the seafarer remains unfit to perform similar work, the principal and manning agency deny to grant the seafarer with total and permanent disability benefits on the defense that the benefits must be those that corresponds to the given disability grading. What happened, then, to the seafarer who cannot anymore be gainfully employed in the same way that he was accustomed before the occurrence of his disability?

In a number of cases, the Supreme Court had emphasized that in disability compensation, what is compensated is the incapacity to work, not the injury or illness.

In one case, the seafarer was diagnosed with lumbar spine illness and assessed by the company-designated physician with disability Grade 8, but remains unfit to work as a seafarer (pump man). The Supreme Court ruled that, under the legal contemplation, the seafarer is totally and permanently disabled stressing that if the injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally and permanently disabled (Krestel Shipping Co., Inc., et al. vs. Munar, G.R. No.  198501; January 30, 2013).

The same principle was applied in the case of Alpha Ship Management Corporation, et al. vs. Calo (G.R. No. 192034, January 13, 2014), under which the Supreme Court deemed the seafarer totally and permanently disabled due to the fact that he was under medical treatment and unable to engage in gainful employment for more than 240 days.

In sum, regardless of the disability grading assessment, so long as the seafarer’s injury or illness prevents him from engaging in gainful employment for more than 120 or 240 days, the seafarer becomes entitled to total and permanent disability benefits. As the Supreme Court consistently emphasized, disability should be analyzed more on the loss or impairment of the earning capacity, and not much on its medical significance.