Timeliness of the third doctor referral in seafarer’s cases

The POEA Contract does not require a specific period within the parties in a case involving a seafarer’s disability claims may seek the opinion of a third doctor.  They may do so even during the mandatory conference before the labor tribunals.

          This was the recent ruling of the Supreme Court in the case of Ilustricimo vs. NYK-Fil Shipmanagement (G.R. No. 237487 June 27, 2018) that involved a seafarer that was diagnosed with bladder cancer.

          The court ruled that the company-designated doctors’ assessment is not always binding in cases of non-referral to a third doctor of disability claims of seafarers.

          Legal issues on compliance with the third doctor referral procedure is based on Section 20(A) (3) of the POEA-Standard Employment Contract which provides that if a doctor appointed by the seafarer disagrees with the assessment of the company-designated doctor, a third doctor may be agreed jointly between the employer and the seafarer, and the third doctor’s decision shall be final and binding on both parties.

          Referral to a third doctor became a mandatory procedure as a consequence of the POEA contract provision that the company-designated doctor’s assessment should prevail in case of non-observance of the third doctor referral provision in the contract.  Stated otherwise, the company can insist on its disability rating even against the contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking for a referral to a third doctor who shall make his or her determination and whose decision shall be final and binding on the parties.

          The Supreme Court downplayed the employer’s argument that the seafarer’s failure to communicate his separate medical certification prior to the filing of the complaint not only constitutes a breach of his contractual obligations under the POEA contract, but also renders the complaint premature and is a ground for the dismissal of his claim for disability benefits.

          The Court in said case held that the employers do not deny receiving the seafarer’s letter despite their insistence that he failed to activate the third doctor provision.

          Infact, employers repeatedly insisted that the letter was not meant to dispute the company-designated doctor’s assessment, but rather to inform them that petitioner needed continued medical assistance.  On the assumption that the seafarer indeed “belatedly” informed the employer of the opinion of his second doctor and his intent to refer his case to a third doctor, the fact remains that they have been notified of suchintent.

          The instant Ilustricimo vs. NYK-Fil case emphasized that the POEA Contract does not require as specific period within which the parties may seek the opinion of a third doctor, and they may do so even during the mandatory conference before the labor tribunals.   

          Accordingly, upon being notified of the seafarer’s intent to dispute the company doctor’s findings, whether prior or during the mandatory conference, the burden to refer the case to a third doctor has shifted to the respondents.

          Informerly Inc. Shipmanagement Incorporated vs. Rosales (438 SCRA 30) reiterated that when the seafarer challenges the company doctor’s assessment made by his own doctor, the seafarer shall so signify and the company thereafter carries the burden of activating the third doctor provision:

          This, the employers failed to do so, and the seafarer cannot be faulted for the non-referral.

          Consequently, the company-designated doctors’ assessment is not binding.

          (Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan Law Offices. For comments, email info@sapalovelez.com, or call 0917-502-5808 or 0908-866-5786).

sickness allowance

A medically repatriated   seafarer would normally result in depriving him of compensation income due to his inability to perform his sea duties.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, the Filipino 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. 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.

The employer is liable for the full wage, while the seafarer is still on board, and the cost of medical treatment in foreign ports. The employer also has  to bear the cost of repatriation and treatment, and the seafarer is entitled to an additional sickness allowance.

To address the contingency of his  repatriation  to undergo treatment,   the POEA contract  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. The number of days under medication is a significant element in determining the disability benefits of  a seafarer who was a medically repatriated.  

The amount of sickness allowance is the basic wage of the seafarer, counting from the day he signed off from the ship until the time he is declared fit to work or disability grading assessed by the company-designated physician.

The company is liable for the sickness allowance at the time when he is under treatment and waiting for the company-designated doctor to decide if the injury or illness is work-related.

 If the seafarer is declared fit for duty after the medical treatment, the sickness allowance is the only benefit he could get. If the seafarer is further assessed disability  grading due to irreperable  physical damage, he could receive the said sickness allowance plus  the disability benefits  based  on the  grading system.

 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)

Noise and Seafarer's hearing loss

Noise  is a major health hazard to seafarers. It causes hearing loss over years of being exposed from various sources like  large diesel engines, turbines, cargo cranes,  and other equipments.

Hearing loss caused by noise exposure is called sensorineural, a type of hearing loss related to problems in the inner ear. Noise, over time, can cause damage to the nerve cells and small hairs in the inner ear that send sound signals to the brain.

A 10-year pre-employment medical (PEME) study released in March 2016   by the UK P&I Club has found a dramatic increase in the incidence of hearing defects as the main reason for crew failing their pre-employment medical checks. Hearing defects have increased by 40% and are now the third main cause of PEME failure.  Typically, crew with poor audiometry results can also display signs of mild to moderate high frequency hearing loss.Those seafarers working in engine rooms had a higher tendency to experience hearing disabilities. 

Hearing loss  is a very real possibility but is  one of those types of occupational illness  that are not usually immediately obvious. The effects of exposure to engine noise over the years more often than not appear  as the seafarer approach retirement age. 

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In the event that such hearing loss was detected during the PEME, the seafarer will not automatically receive medical benefits even if he is connected with the company for long period of time. The seafarer  must complain of the illness  during the effectivity of the contract which leads to his   medical repatriation. Otherwise,  it will be a case of finished contract disqualifying him for  medical benefits.. 

Under the POEA Contract, total deafness of both ears is assessed as   a Grade “3” disability Despite said unfortunate condition,   the seafarer will not be given  total permanent disability benefits. The contract fails  to recognize  the Supreme Court's ruling "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. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work.” A seafarer suffering from  total deafness  will  be considered  more of a liability than an asset if he  is allowed to go on board the vessel. 

   

In cases of medical repatriation due to hearing problems, failure to comply with the  3 day reportorial  rule found under the POEA Contract will lead to denial of claims. He must  also  show that he was physically incapacitated to be medically examined by a company-¬designated physician that would have justified his non-compliance with the mandatory three-day period. (Ricasata vs.Cargo Safeway, G.R. No. 208896, April 6, 2016)

If  the seafarer  suspects that he has  hearing loss because of noise exposure on the job, he  should  see a doctor before disembarkation and get medical records that prove it was most likely caused by years of exposure at work.Losing hearing is a serious medical condition and it impacts one's  well-being.

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)

Seafarers and infections

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

         For a sick  seafarer to be entitled to medical benefits under the  POEA-Standard Employment Contract (SEC),   he must have suffered work related illness which is defined  as any sickness resulting to disability or death as a result of one of the  twenty-four (24) occupational diseases listed under Section 32-A of the said contract with the conditions set therein satisfied.  

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The list includes  an infectious disease that a seafarer may suffer during the effectivity of his contract which  is defined as a disease resulting from the presence and activity of pathogenic microbial agents in the body. These agents include pathogenic viruses, pathogenic bacteria, fungi, protozoa, multicellular parasites, and aberrant proteins known as prions Infectious diseases are recognized as an occupational hazard in seafaring and are closely connected to the conditions of working and living onboard. These may either result from person-to-person transmission of infectious agents or through food, water or insects onboard ships or in ports, as well as from pre-existing conditions.

The seafarer may suffer any of the following Infections:  (a) Pneumonia  (b) Bronchitis  (c) Sinusitis (d) Pulmonary Tuberculosis   (f) Anthrax  (g) Cellulitis  (h) Conjunctivitis (Bacterial and Viral)  (i) Norwalk Virus  (j) Salmonella  (k) Leptospirosis  (l)  Malaria  (m) Otitis Media  (o) Tetanus  (p). Viral Encephalitis . The list also contain  other infections resulting in complications necessitating repatriation.

Most infections   relentlessly find entry points to human populations through diverse mechanisms. Respiratory diseases are commonly acquired by contact with aerosolized droplets, spread by sneezing, coughing, talking, kissing or even singing e.g. bronchitis, PTB, pneumonia, sinusitis, pneumonia.  Gastrointestinal diseases are often acquired by ingesting contaminated food and water e.g. Norwalk Virus, Salmonella, Leptospirosis.  Others may be due to contact with animals/ insects/ bacteria   e.g Malaria, Conjunctivitis (Bacterial and Viral), Tetanus, anthrax.

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:

1.         The seafarer's work must involve the risks describe therein;

2.         The disease was contracted as a result of the seafarer's exposure to the described risks;  

3.         The disease was contracted within a period of exposure and under such factors necessary to contract it; and

4.         There was no notorious negligence on the part of the seafarer.

In other words, to be entitled to compensation and benefits under this provision, it is not sufficient to simply establish that the seafarer's illness or injury 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 .

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 headaches, fever, coughs,  sore throat. chills, nausea, and shivering, skin rashes.  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.

Prevention of food and waterborne disease starts from well-constructed accommodation, galley, water system and food storage areas. Safe sources for catering materials, training of cooks and everyday ship hygiene and maintenance are essential.

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

Dubious Certificate of Fitness in disability claims

The Supreme Court warned companies from issuing dubious Certificate of Fitness which it described as “a ploy that aims to take advantage of the worker’s lack of sufficient legal knowledge and his desperate circumstances”

The Supreme Court ruled in favor of a young seafarer who sought payment of permanent total disability benefits for contracting bipolar disorder during his employment, an  illness that  was declared  work-related and aggravated by the harsh treatment he received from the ship officers (Career Shipmanagement vs. Eduardo Godinez, G.R. No. 206826, October 2, 2017)

The supreme Court emphasized the circumstances on how the alleged Certificate of Fitness for Work was  executed by the seafarer (during the medication process)   and was used by the company to serve as proof of his state of health in an effort to deny his claims for total disability benefits.

            

The  court considered  the seafarer’s  declaration as  not competent since he  is not a trained physician,  and it cannot take the place of the company-designated physician’s assessment required by law and the POEA contract

The Court warns against the continued use of underhanded tactics that undermine the interests of labor, damages the integrity of the legal profession, mock the judicial process as a whole, and insult the intelligence of the Court.  In prosecuting a client’s case, the Court reminded the company’s counsels that there are multiple ways of securing victory, other than through fabrication, prevarication, and guile.

The manner in which the seafarer  was dealt with in the proceedings, the Court emphasized,  evinces a perverse attempt to evade liability by fabricating evidence and utilizing objectionable and oppressive means and schemes to secure victory.  It constitutes an affront, not only to the Court, but to all honest workingmen earning a living through hard work and risking their lives for their families.

In a related case,     the fact that a Certification of Fitness was executed, it should no also t be considered as a bar in seafarer’s availment of second medical opinion from his personal doctor and later to seek relief from a legal forum.

               To adopt and paraphrase  the Supreme Court’s wisdom in Mercury Drug vs. Dayao, ( 202 Phil 424) , the company’s  contention that its employees fully understood what they signed when they executed the Certificate of Fitness  and that they should be bound by their voluntary commitment's is anachronistic in this time and age. The worker  is  at a disadvantage insofar as the contractual relationship is  concerned. Workers in our country do not have the luxury or freedom of  refusing to sign a Certificate of Fitness even when some terms and conditions of employment are not only onerous and inequitous but illegal. It is precisely because of this situation that the framers of the Constitution embodied the provisions on social justice (Section 6, Article II) and protection to labor (Section 9, Article II) in the Declaration of Principles And State Policies. It is pursuant to these constitutional mandates that the courts are ever vigilant to protect the rights of workers who are places in contractually disadvantageous positions and who sign waivers or provisions contrary to law and public policy.

 In labor jurisprudence, it is well-established that quitclaims and/or complete releases executed by the employees do not estop them from pursuing their claims arising from the unfair labor practice of the employer. The basic reason for this is that such quitclaims and/or complete releases are against public policy and, therefore, null and void. The acceptance of termination pay does not divest a laborer of the right to prosecute his employer for unfair labor practice acts. [3]

In the Cariño vs. ACCFA case (L-19808, Sept. 29, 1966, 18 SCRA 183)  , the Supreme Court  said "acceptance of those benefits would not amount to estoppel. The reason is plain. Employer and employee, obviously, do not stand on the same footing. The employer drove the employee to the wall. The latter must have to get hold of money. Because, out of job, he had to face the harsh necessities of life. He thus found himself in no position to resist money proffered. His, then, is a case of adherence, not of choice. One thing sure, however, is that petitioners did not relent their claim. They pressed it. They are deemed not to have waived any of their rights. Renuntiatio non praesumitur."

 In More Maritime Agencies, Inc. vs. NLRC (366 Phil. 646, 653-654), the Court ruled that the law does not consider as valid any agreement to receive less compensation than what a worker is entitled to recover nor prevent him from demanding benefits to which he is entitled. Quitclaims executed by the employees are thus commonly frowned upon as contrary to public policy and ineffective to bar claims for the full measure of the worker's legal rights, considering the economic disadvantage of the employee and the inevitable pressure upon him by financial necessity. Thus, it is never enough to assert that the parties have voluntarily entered into such a quitclaim. There are other requisites, to wit: (a) that there was no fraud or deceit on the part of any of the parties; (b) that the consideration of the quitclaim is credible and reasonable; and (c) that the contract is not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law.

This principle was utilized In the case of Var-orient  Shipping  Co. vs. Flores (October 6, 2010 G.R. No. 161934  when  the Supreme Court took cognizance of the illegality of the Certification of Fitness to Work.   It noted that the Receipt and Quitclaim executed by the seafarer  lacks the elements of voluntariness and free will and, therefore, does not absolve employers  from liability in paying him the sickness wages and other monetary claims. A perusal of the provisions of the Receipt and Quitclaim shows that seafarer  would be releasing and discharging the employers  from all claims, demands, causes of action, and the like in an all-encompassing manner, including the fact that he had not contracted or suffered any illness or injury in the course of his employment and that he was discharged in good and perfect health. These stipulations clearly placed the seafarer  in a disadvantageous position vis-á-vis the employers .

The certificate of fitness to work executed by a seafarer  cannot prevail in the labor  cases since the worker,  untrained in the medical arts, is not in possession of sufficient knowledge to expertly asses his true and correct health status. For while a person can assess his general health, he cannot do so with respect to his medical condition which undoubtedly require a trained man learned in the medical arts, to properly diagnose and treat. It could not be said that a layman possess the requisite level of knowledge and expertise which took years of learning and experience for a trained cardiologist to acquire.  Therefore,    the  act of preying upon the ignorance of the petitioner must not be countenanced by our labor courts

Moreover,  it must be stressed that the POEA SEC recognizes the right of seafarers to seek a second opinion to contest the certification issued by the company doctor, in this case, the “fit to work” certification. To insist that the seafarer is barred from seeking opinion is tantamount to a violation of the POEA SEC’s terms and conditions. 

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[3] Cariño vs. ACCFA, L-19808, Sept. 29, 1966, 18 SCRA 183; Philippine Sugar Institute vs. CIR, L-13475, Sept. 29, 1960, 109 Phil. 452; Mercury Drug Co. vs. CIR, L-23357, April 30, 1974, 56 SCRA 694, 704.