Spine injuries at sea

Back pains or spine injuries or illnesses are inherent in a seafarer’s  job characterized by excessive and strenuous physical activities, such as lifting, carrying, pushing, pulling and moving heavy equipment and materials.

The injury or illness may occur over a period of time or on the spot depending upon the physical strength and posture of the workers as well.   

The common back injuries or illness include lumbar spondylosis, lumbar radiculopathy, multi-level disc dessication, posterior disc herniation, or canal stenosis.

In compensation  claims, employers usually  argue that the nature of disability and the benefits are determined by the manner they are graded or classified under the POEA contract and not by the number of days that a seafarer is under treatment.  If a seafarer has an injury or medical condition that is not considered a Grade 1 impediment, then he cannot claim that he is totally or permanently disabled. To allow the contrary, they argue, would render naught the schedule of disabilities.

Under the POEA contract, Grade 1 disability grading will be given if a seafarer suffered  injury to the spinal cord  if (a) it  makes walking impossible even with the aid of a pair of crutches or (b) results to incontinence of urine and feces.

Partial disability  benefits will be given if the assessment is as follows: (a) Grade 4 if it caused walking impossible without the aid of a pair of crutches; (b) Grade 6  if he suffered fracture of the dorsal or lumber spines resulting severe or total rigidity of the trunk or total loss of lifting power of heavy objects ; (c) Grade 8 if he  suffered moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk; and (d) Grade 11 if he  suffered slight rigidity or one third (1/3) loss of motion or lifting power of the trunk.

In some instances, any seafarer who suffered these  medical conditions is in essence should be declared total permanent disabled, and not merely partial temporary. The findings and the disability grading of a company-designated physician could be set aside in the determination of disability compensation.

The  Supreme Court  usually considers the glaring apparent inconsistency in the company doctor's medical report between the classification of seafarer's disability and the fact that he had been unable to work for long period of time, which condition makes his disability permanent and total. (Crystal Shipping, Inc. vs. Natividad, 473 SCRA 559).

Permanent total disability means disablement of a seafarer to earn wages in the same kind of work, or 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 attainment could do. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work. (Seagull Maritime Corporation vs. Dee, 520 SCRA 109).  

If those 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 or permanently disabled (Kestrel Shipping Co., Inc. v. Munar, 689 SCRA 795)

Companies cannot deny the fact that a seafarer suffering from any of these medical conditions will be considered more of a liability than an asset if he is allowed to go on board the vessel.He would no longer be able to perform strenuous activities such as the rigorous duties of a seafarer.

The Supreme Court acknowledge that  symptoms following surgery are relieved only to recur after a variable period. The causes may include insufficient removal of disc material and further extrusion, rupture of another disc, adhesions about the nerve root and formation of an osteophyte at the site of removal of bone. Even a successful disc removal  does not guarantee a permanent cure as fibrosis can produce a dense constricting scar tissue, which is presumed to be a prime cause of recurrent symptoms(NFD . v. Illescas, G.R. No. 183054, September 29, 2010.)

Surgery can never stop the pathological process nor restore the back to its previous state. Similar poor results have been found with repeated attempts at surgical intervention for the relief of chronic low back pain. If long term relief is desired, continued mechanical stress of postural or occupational type must be avoided.

Resuming a seafarer’s  usual work, which includes increased loading, twisting, or bending and extension of the back, will further expose him  to dangers of  aggravating his medical condition. 

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Compulsory insurance coverage of a deceased OFW

The compulsory insurance coverage  for overseas Filipino workers (OFWs), including seafarers, was  primarily designed for the protection of the interests and welfare of the worker  and their families.

Under Section 37–A of R.A. No. 8042, as amended by R.A. No. 10022, otherwise known as “Migrant Workers and Overseas Filipinos Act of 1995,” states that each migrant worker, including seafarers,  deployed by a recruitment or manning agency shall be covered by a compulsory insurance policy which shall be secured at no cost to the said worker, which shall remain valid during the duration of the employment and shall cover (1) accidental death, (2) natural death, (3) permanent total disablement, (4) repatriation cost, (5) subsistence allowance, (6) money claims, (7) compassionate visit, (8) medical evacuation, and (9) medical repatriation.

With respect to an OFW’s untimely  death, the minimum insurance benefits payable to   his beneficiaries shall include  (a) at least Fifteen Thousand United States Dollars (US$15,000.00)  for  accidental death  or (b) at least Ten Thousand United States Dollars (US$10,000.00)  for natural death.

The insurance provider shall likewise arrange and pay for the repatriation of the worker’s remains and belongings.

The insurance provider shall also render any assistance necessary in the transport, including but not limited to locating a local and licensed funeral home, mortuary or direct disposition facility to prepare the body for transport, completing all documentations, obtaining legal clearances, procuring consular services, providing death certificates, purchasing the minimally necessary casket or air transport container, as well as transporting the remains including retrieval from site of death and delivery to the receiving funeral home and back to the residence of the worker in the Philippines or to any place in the Philippines in accordance with the worker’s will, if there is any.

The extent of the said benefits shall be regardless of the cost, the primary test of compliance being the complete repatriation of the worker’s  remains  and his personal belongings.

Under the law, any claim arising from accidental death, natural death or permanent total disablement shall be paid without the necessity of proving fault or negligence of any kind on the part of the  migrant worker.

In the case of work-related death of the seafarer, during the term of his POEA-approved contract,  the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of 21 years old  but not exceeding four (4) children.  The amount usually is higher if the death is covered by a Collective Bargaining Agreement (CBA).

The POEA contract defined "work-related injury" as "injury(ies) resulting in disability or death arising out of and in the course of employment" and "work-related illness" as "any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of the contract.

The insurer must pay the seafarer’s beneficiaries  initially the amount of US$15,000.00 for accidental death or US$10,000.00 for natural death  during the contract in the event that there is a legal issue whether or not  the nature of  the death is work-related, such as in cases of suicide, since   there is no necessity of proving fault or negligence of any kind on the part of the  seafarer.

However, Migrante Hongkong  is campaigning against the implementation of the  OFW compulsory insurance. . They noted that HongKong  employers are already required by law to get insurance for their domestic workers. If they don’t get one, and something happens to their worker, employers will be liable and must make sure that they will be responsible for the expenses.

Migrante argues that the new mandatory insurance order will just add to the list of expenses that employers are made to pay for and will merely increase friction between the employer and worker, and might lead to non-rehiring.

 
(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Pneumonia as an occupational illness

 To be entitled to compensation and benefits, it is not sufficient to simply establish that the seafarer's pneumonia   has rendered him permanently or partially disabled; it must also be shown that there is a causal connection between the seafarer's illness or injury and the work for which he had been contracted .

It is   a well-known fact that seafaring is one of the most hazardous occupations, in regards to personal health and safety concerns of seafarers. 

Apart from accidents, seafarers are prone to certain serious diseases and health hazards due to the nature of onboard work, change in climatic conditions, type of cargo carried, working hours, materials being handled, epidemic and endemic diseases, personal habits etc. Because of their nature of work, seafarers are bound to visit many ports in different parts of the world and are thus exposed to various pandemic and epidemic diseases. 

      Pneumonia is an infection in one or both lungs. It can be caused by bacteria, viruses, or fungi. Pneumonia causes inflammation in the air sacs in your lungs, which are called alveoli. The alveoli fill with fluid or pus, making it difficult to breathe. 

Pneumonia can be classified according to the organism that caused the infection (Bacterial, Viral, Mycoplasma and Fungal);  where it was acquired (hospital, community) or  how it is acquired (aspiration or ventilator-associated).

The seafarer  is required to prove that: (1) he suffered an illness; (2) he suffered this illness during the term of his employment contract; (3) he complied with the procedures prescribed under Section 20-B; (4) his illness is one of the enumerated occupational disease or that his illness or injury is otherwise work-related.  

A seafarer suffering from any of the  infections   would still have to satisfy four (4) conditions before his or her disease may be compensable: (a) the seafarer's work must involve the risks describe therein; (b)  the disease was contracted as a result of the seafarer's exposure to the described risks;  (c). the disease was contracted within a period of exposure and under such factors necessary to contract it; and (c) there was no notorious negligence on the part of the seafarer.

Since one of the requirement for an illness to be compensable is that the seafarer suffered said illness during the effectivity of the POEA contract, it is imperative that his condition or symptoms  must be documented while he is on board the vessel, such as Pneumonia symptoms can be mild to life-threatening. The most common symptoms of pneumonia can include: coughing that may produce phlegm (mucus); fever, sweating, and chills; shortness of breath and chest pain.    Otherwise, his claim for disability benefits might be denied due to failure to prove that said illness occurred while his contract is still in force.

 The Supreme Court ruled in a case the claimants   failed to adduce substantial evidence showing that the pneumonia, which the seafarer contracted, was caused by tetanus as a result of the burn injury.  There was no medical report which would even show that tetanus was the cause as to why the seafarer suffered pneumonia that eventually caused the death. Crew and Ship Management vs. Soria  G.R. No. 175491; December 10, 2012

The Supreme Court likewise ruled that the causes of  the seafarer's  death, as shown by his death certificate, indicate that pneumonia was simply the final illness that immediately brought about his  death. The long road to pneumonia started from an underlying cause AIDS that rendered him susceptible to the antecedent cause of tuberculosis, and to pneumonia as the immediate cause of death.  No evidence on record shows that seafarer's  working conditions on board as a First Engineer caused the pneumonia that brought on his death two years after he had disembarked from his vessel. (Escarcha vs. Leonis, July 5, 2010,  Gr. No. 182740)

Accident or illness report while on board the vessel

The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract include medical treatment apart from disability benefits and sickness allowance. A medically repatriated seafarer, either due to an injury or an illness, should remember that there are three basic medical documentations that will play vital roles in availing benefits under the Philippine Overseas Employment Administration Standard Employment Contract (POEA- SEC), to wit:

1. Pre -Employment Medical Examination (PEME)

2. Accident or illness report while on board the vessel

3. Post-medical reporting within three (3) working days upon arrival in the Philippines

One who claims entitlement to the benefits provided by law should not only comply with the procedural requirements of law but must also establish his right to the benefits by substantial evidence.The burden, therefore, rests on theseafarer to show that he   suffered or contracted his illness or injury, while still employed as a seafarer, which 

resulted in his permanent disability.

A seafarer must present evidence or report  that he complained of any medical condition while  working  on board the vessel during the term of his contract . This is  to give the  company or insurance authorities the basis for evaluating whether the personal injury or illness in question can be recognized as an occupational injury or  disease. A work-related Illness  is  any sickness as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied. A work-Related Injury  is an injury arising out of and in the course of employment.


Otherwise,  he will be disqualified  for disability benefits since  he disembarked due to a  finished contract.  There must be a showing that he suffered the illness or injury within the effectivity of POEA contract,    from departure from the point of hire until return to the point of hire (i.e.  Airport to Airport ). The employment of the seafarer shall cease when the seafarer completes his period of contractual service aboard the ship, signs-off from the ship and arrives at the point of hire.

In the recent case of the  Veronico Tagud vs. BSM Crew Service Center Phils  (G.R. No. 219370. December 6, 2017), the Supreme Court ruled that the seafarer  failed to discharge this burden. He  only presented an x-ray report dated 21 October 2008 taken in Wynnum, Queensland, where the Kota Pemimpin vessel docked three days after he lost his balance due to the tilting of the ship which hurt his right elbow region. But even findings in the x-ray result stated that there was no fracture and no abnonnality except for a small olecranon spur. This finding is therefore not conclusive and can lead to many other assumptions. Also, after the x-ray procedure was taken, the seafarer could have immediately requested for a follow­ up check-up or demonstrated that he was in need of urgent medical attention. But he did not. Thus, the reasonable conclusion is that at the time of his repatriation, the seafarer was not suffering from any physical disability requiring immediate medical assistance and that his employment was terminated due to a finished contract. It is also well noted that many other incidents could have occurred in the duration of four months from the time he was repatriated until he consulted a private physician which could have triggered the pain in his upper right extremities and that such illness or injury could not have been work-related at the time he was still employed by respondents

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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Third doctor opinion rule in seafarer's compensation claims

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