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).

Pre -Employment Medical Examination (PEME) and pre-existing illnesses

According to the International Labor Organization (ILO),  the aim of the  Pre -Employment Medical Examination (PEME)  is to ensure that the seafarer being examined is medically fit to perform his or her routine and emergency duties at sea and is not suffering from any medical condition likely to be aggravated by service at sea, to render him or her unfit for service or to endanger the health of other persons on board. The medical certificate is neither a certificate of general health nor a certification of the absence of illness. It is a confirmation that the seafarer is expected to be able to meet the minimum requirements for performing the routine and emergency duties specific to their post at sea safely and effectively during the period of validity of the medical certificate. 

The Philippine Overseas Employment Administration (POEA) contract states that a seafarer who knowingly conceals a pre-existing illness or condition in the PEME shall be liable for misrepresentation and shall be disqualified from any compensation and benefits. This is likewise a just cause for termination of employment and imposition of appropriate administrative sanctions..

At the bottom portion of the PEME, one can find the following sentence " I hereby certify that the personal declaration above is true to the best of my knowledge and I fully understand the above results of my medical examination as explained to me by the examining/authorized physician." 

The Supreme Court pointed out that the PEME is not exploratory and does not allow the employer to discover any and all pre-existing medical condition with which the seafarer is suffering and for which he may bepresently taking medication. The PEME is nothing more than a summary examination of the seafarer’s physiological condition (DOHLE-PHILMAN Manning Agency, Inc. v. Cabanban, 702 SCRA 467). it merely determines whether one is "fit to work" at sea or "fit for sea service" and it does not state the real state of health of an applicant. The "fit to work" declaration in the PEME cannot be a conclusive proof to show that he was free from any ailment prior to his deployment.(Magsaysay Maritime Corporation v. NLRC, 616 SCRA 362, 378-379.

Nevertheless, the Supreme Court noted that neither is it necessary, in order to recover compensation, that the seafarer  must have been in perfect condition or health at the time he contracted the disease. Every workingman brings with him to his employment certain infirmities and while the employer is not the insurer of health of the seafarers, he takes them as he finds them and assumes the risk of liability. If the disease is the proximate cause of the seafarer’s death for which compensation is sought, the previous physical condition of the seafarer  is unimportant and recovery may be had therefore independent of any pre-existing disease But even assuming that the ailment was contracted prior to his employment on board the vessel  this is not a drawback to the compensability of the disease. It is not required that the employment be the sole factor in the growth, development or acceleration of the illness to entitle the claimant to the benefits provided therefor. It is enough that the employment had contributed, even in a small degree, to the development of the disease and in bringing about his death(Wallem Maritime Services Inc vs. NLRC, 318 SCRA 623) 

Even so, a seafarer's illnesses  could have been easily detected by standard/routine tests included in the PEME, i.e., blood pressure test, electrocardiogram, chest x-ray, and/or blood chemistry. (C.F. SHARP CREW MANAGEMENT, INC vs. HEIRS OF THE LATE GODOFREDO REPISO, G.R. No. 190534, February 10, 2016)

Seafarers are not required to pay for the PEME expenses since these are considered as processing fees required for deployment.chargeable to principal/employer.  However, in case of seafarer’s failure or unjustified refusal to join ship after all processing fees have been incurred by the principal/employer, the said fees shall be refunded by the seafarer within thirty (30) days from demand. 

Under pertinent  rules and laws,  some of the recruitment offenses include (a)  charging or accepting directly or indirectly any amount of money, goods or services, or any fee or bond for any purpose from an applicant seafarer (b) Collecting any amount as payment for processing, or documentation costs not prescribed by the rules, or an amount greater than the actual documentation costs, as covered by official receipts issued by entities where payments were made; (c) Failure to reimburse expenses incurred by the seafarer in connection with his documentation and processing for purposes of deployment, where deployment does not take place without the seafarer's fault and (d) withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized 

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

Findings of Personal doctor versus company-designated physician

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.

 

This issue was discussed by the Supreme Court in the recent 2015  case of Philippine Transmarine Carriers, Inc. and Northern Marine Management Vs. Joselito A. Cristino (G.R. No. 188638. December 9, 2015) wherein the Court said that the medical opinion of the seafarer’s personal specialist doctor deserves greater evidentiary weight as the company offered no other convincing proof to substantiate their arguments. The company doctor and the seafarer’s personal doctor differed on their opinion on the work-relatedness of the seafarer’s illness, melanocytes or malignant  melanoma. The Court said that the seafarer’s own oncologist was actively involved in his treatment and even performed surgical procedure on him as opposed to the more basic medical management provided by the company’s designated physician which were initially limited to the giving of oral medication and wound dressing.

 

             

In various decisions, the  Supreme Court clearly pointed out that the findings and the disability grading of a company-designated physician could be set aside by the Court in its determination of disability compensation (Philippine Transmarine Carriers, Inc. vs. NLRC, 353 SCRA 47).   The Court noted 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 Court also considered the glaring apparent inconsistency in the company doctor's medical report between the classification of claimant's disability and the fact stated that said claimant 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.)

 

            In Seagull Maritime Corp. vs. Jaycee Dee et al (520 SCRA 109)  the  highest tribunal explained that “courts are called upon to be vigilant in their time-honored duty to protect labor, especially in cases of disability or ailment. When applied to Filipino seamen, the perilous nature of their work is considered in determining the proper benefits to be awarded. These benefits, at the very least, should approximate the risks they brave on board the vessel every single day.     Accordingly, if serious doubt exists on the company-designated physician's declaration of the nature of a seafarer's injury and its corresponding impediment grade, resort to prognosis of other competent medical professionals should be made. In doing so, a seaman should be given the opportunity to assert his claim after proving the nature of his injury. These evidences will in turn be used to determine the benefits rightfully accruing to him.  Nowhere in that case (German Marine Agencies, Inc. did we hold that the company-designated physician's assessment of the nature and extent of a seaman's disability is final and conclusive on the employer company and the seafarer-claimant. While it is the company-designated physician who must declare that the seaman suffered a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion.”

 

In  HFS Philippines vs. Pilar (585 SCRA 315),  the findings of the independent physicians were given more credence than those of the company-designated physicians, the Supreme Court held that “the bottomline is this: the certification of the company-designated physician would defeat respondent's claim while the opinion of the independent physicians would uphold such claim. In such a situation, we adopt the findings favorable to respondent. The law looks tenderly on the laborer. Where the evidence may be reasonably interpreted in two divergent ways, one prejudicial and the other favorable to him, the balance must be tilted in his favor consistent with the principle of social justice.”

 

The POEA contract does not preclude the seafarer from getting a second opinion as to his condition for purposes of claiming disability benefits. The Supreme Court reiterated   in the case of  Maersk Filipinas Crewing Inc. vs. Mesina (697 SCRA 601)  that "[w]hile it is the company-designated physician who must declare that the seaman suffers a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion," hence, the Contract "recognizes the prerogative of the seafarer to request a second opinion and, for this purpose, to consult a physician of his choice” (NYK-Fil Ship Management vs. Talavera, 571 SCRA 183; Abante vs. KJGS Fleet Management Manila, et al, 607 SCRA 734). The Court stressed that the company physician's assessment does not evince irrefutable and conclusive weight in assessing the compensability of an illness as the seafarer has the right to seek a second opinion from his preferred physician. (Maunlad Transport, Inc. vs. Manigo Jr., G.R. No. 161416, June 13, 2008, citing Crystal Shipping, Inc. vs. Natividad, Philippine Transmarine Carriers, Inc. vs.NLRC, 525 SCRA 42, Cadornigara vs. NLRC, 538 SCRA 363.)

 

            In the case of Magsaysay vs. Laurel (694 SCRA 225) the disability provisions of the POEA-SEC recognize the right of a seafarer to seek a second medical opinion and the prerogative to consult a physician of his choice. Therefore, the provision should not be construed that it is only the company-designated physician who could assess the condition and declare the disability of seafarers. The provision does not serve as a limitation but rather a guarantee of protection to overseas workers.

            This principle is in line with the Supreme Court rulings that strict rules of evidence are not applicable in claims for compensation considering the probability and not the ultimate degree of certainty is the ultimate test of proof in compensation proceedings (Barcenas vs. WCC 158 SCRA 314; NFD International Manning Agents, Inc. vs. NLRC, 269 SCRA 486; Heirs of the late R/O Reynaldo Aniban vs. NLRC, 282 SCRA 377).  

 Atty. Dennis R. Gorecho (UPLaw 1998)  is 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  and the 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 every Wednesday 10:30am to 12noon. For comments, please send  email  at info@sapalovelez.com or call  09175025808