Concealment of pre-existing illnesses and disability benefits

A seafarer must fully  disclose past medical condition, disability and history in the pre-employment medical examination (PEME), otherwise his claim for disability benefits will be denied.

 The POEA contract  bars the compensability of disability arising from a pre-existing illness when attended by a seafarer’s fraudulent misrepresentation.

 The POEA contract  states that “a seafarer who knowingly conceals and does not disclose past medical condition, disability and history in the pre-employment medical examination constitutes fraudulent misrepresentation and shall disqualify him from any compensation and benefits.”

This rule  in compensation cases was recently reiterated by the Supreme Court in the case of Danilo Lerona vs. Sea Power Shipping Enterprises (G.R. No. 210955 August 24, 2019).

In denying the claims, the Supreme Court noted that the seafarer  did not indicate in the appropriate box in his Pre-Employment Medical Examination (PEME)  form that he has hypertension, although he had been taking Norvasc as maintenance medicine for two years.

The seafarer  only disclosed his pre-existing medical condition after he was repatriated to the Philippines.

The Supreme Court brushed aside the seafarer’s  argument that he did not reveal his hypertension during his PEME out of an honest belief that it had been "resolved."  

The Court noted the fact that the seafarer  continues to take maintenance medicine indicates that his condition is not yet resolved. Additionally, within the two years that he  had been taking maintenance medication for his hypertension, he had boarded the company’s ships four times.

Since PEME is mandatory before a seafarer is able to board a ship, the Court stressed that it goes to  show that the seafarer concealed his hypertension no less than four times as well which  negates any suggestion of good faith that petitioner makes in defense of his misdeed.

However, the Supreme Court ruled in an earlier case  that honest mistakes on  a pre-existing illness during the PEME  will not deprive seafarers of their right over disability or death benefits.

 In Manansala,  v. Marlow Navigation Phils., Inc.  (G.R. No. 208314, August 23, 2017),the Supreme Court noted that the contract’s  terminology is carefully calibrated: it does not merely speak of incorrectness,  falsity,  of incompleteness or inexactness, or failure to disclose the truth.  Rather, to negate compensability, it requires fraudulent misrepresentation,  that he  deliberately concealed it for a malicious purpose.

To amount to fraudulent misrepresentation, falsity must be coupled with intent to deceive and to profit from that deception.

Between the  seafarer and an examining physician, the Supreme Court said that the  latter is in a better position to assess fitness for the rigors of sea duty. Apart from one's literal body, the seafarer’s   only other contribution to a medical examination is a set of responses to questions.

His personal health assessment is based on his amateur opinion, or otherwise unrefined understanding of nuanced medical conditions. In contrast, the PEME procedures are conducted and supervised by professionals with scientific and technical capabilities.

Ultimately, the Supreme Court said that  it is more appropriate that the examining physician, a trained professional, and not the seafarer, who is a layperson, be faulted for discounting the presence of diseases even after subjecting the seafarer to a series of procedures,  verifiable empirical data, which are then evaluated by a physician.

Consequently, reasonable leeway may be extended for inability to make complete and fastidiously accurate accounts when this inability arises from venial human limitation and frailty. This is a normal tendency for laypersons-such as seafarers-rendering accounts of their own medical conditions.     

The greater possibility  is that a seafarer's self-assessment of personal medical conditions will fail to capture nuances that can make the difference between fitness and unfitness for work

As laypersons, they do not have the requisite medical knowledge to properly characterize their illnesses.

Even if they are aware of their own medical conditions, they may, in their non professional opinion but still in good faith, be convinced that their conditions are not so severe and that they can manage to perform work aboard a vessel.

Seafarers cannot be held to account under an inordinate standard. The POEA contract takes exception to fraudulent misrepresentation, not to honest mistakes.

 (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)

Protection of seafarers' rights and ambulance chasing

The dwindling numbers of deployed seafarers are usually  misleadingly blamed  by employers and manning agencies  on  the increasing number of litigated cases.

They have deliberately and  sweepingly   depicted   seafarers’ lawyers as “unscrupulous” in an attempt to deflect the real issues why cases are being filed.  

They criticized the lawyers , most of them  they described as “ambulance chasers” , who  go to lengths to push seafarers to file labor cases against their foreign employers.

 In essence, they  utilize the  phrase that seafarers seek  “benefits even beyond the claims they are actually entitled”  to sanitize the problematic  legal battle for seafarer’s compensation.

 Valid claims,  employers  argue, necessarily must  follow what the POEA contract dictates: a contract  that contains terms and conditions formulated more favorable to his employer and is littered with ambiguous provisions, generalizations, technicalities that he does not understand.

 The seafarer’s  risks of injury, illness or death   are high since  he is constantly exposed to dangerous  working environment as the ships cross ocean boundaries.

 Under  the 1996 POEA Standard Employment Contract (SEC),  for disability or death to be compensable,  it was sufficient that the seafarer suffered injury or illness during the term of his employment.  The cause of illness or death is immaterial.

 However, through the lobbying of the principals and their  manning agencies, the restrictive clause “work-related”  was added under Section 20 (B) of the 2000 POEA SEC to limit their liabilities.  

 The 2000 POEA SEC defined "work-related injury" as "injury 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”. 

 Two elements must concur for compensability . First, that the injury or illness must be work-related; and second, it  must have existed during the term of the seafarer's employment contract. The first requirement  appeared in the 2000 and 2010 POEA contract  but is  absent in the 1996 version.

 Through such restrictive provisions of the POEA contract,  claims for disability and death compensation  became a legal battleground which is partly attributable to the fact that  employers do not hesitate to harness their  immense resources to limit their  liability.

 In denying, if not limiting,  the seafarer’s claims, the employer usually raise the misleading argument that the POEA mandated that disability can only be assessed by the company-designated physician based on the disability grading system.

However, their  medical assessment “is not the alpha and the omega” (Elburg Shipmgt Phils. vs. Quiogue, Jr,   764 SCRA 431) as   the POEA contract does not preclude the seafarer from getting a second opinion as to his condition.

 In reality, the grading system assessment under the POEA contract is not  reflective of the benefits that should be given to the seafarer. There are medical conditions that are classified as partial disability (between Grade 2 to 14) but in essence should have been considered as total permanent (Grade 1).

  Employers will never hire a seafarer who suffered complete loss of the sense of hearing on both ears (Grade 3), loss of speech due to injury to the vocal cord (Grade 9),   total loss of a leg or amputation at or above the knee (Grade 3),    paralysis of one upper extremity (Grade3) , or  loss of one foot at ankle joint or above (Grade 6),   loss of   ten  fingers of both hands (Grade 3)  or amputation between wrist and elbow joint (Grade 5), or total blindness of one  eye and 50%  loss of vision of the other eye (Grade 5) will never be employed due to physical  impairments.

Fit-To Work certifications are given even to seafarers who are still not cured or in essence can no longer be employed such as those who suffered from heart attacks, aneurism or stroke.

From the business point of view, it will be risky for the employers  to let the seafarer be re-employed since the harsh working environment might only aggravate his fragile condition and in the end expose the company to more serious insurance liabilities.

Thus, Supreme Court's consistently  ruled  that  “disability need not render the seafarer absolutely helpless or feeble to be compensable; it means disablement of an employee to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform”.  (Valenzona vs. Fair Shipping Corp, 659 SCRA 642)  

 The word “unscrupulous” should likewise be applied to the employers who  harness  their  immense resources to limit  their  liability.

In many instances, the seafarer signs quitclaim documents thereby releasing his employers from all claims, demands and causes of action without even understanding their contents. Oftentimes, he is misled into accepting an ex-gratia, miniscule amount, in the guise that his condition is either not work-connected, or for any other reason for which he does not comprehend.

 Unless their definition of “valid claims” is changed, through the deletion of the “work-related” clause, or through the reversion to the  old  1996 POEA Contract , the denials of seafarers’ claims will continue. 

The compensation scheme should be less restrictive and more realistic.

Otherwise, their only recourse is to seek legal assistance from lawyers of their own choosing.

Conversely speaking, give the seafarers what they should  receive, and employers will not be hounded by legal cases.  

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

Seafarer’s Diabetes as compensable illness due stress

A seafarer’s diabetes is considered a compensable work-related illness due to the  stressful work condition on board the vessel.

In Apolinario Zonio, jr vs. 88 Aces Maritime Services, Inc.,  (GR.No. 239052 October 16, 2019),  the Supreme Court emphasized the principle that compensability pertains to the entitlement to receive compensation and benefits upon a showing that a seafarer's work conditions caused or at least increased the risk of contracting the disease.

The  POEA Standard Employment Contract  provides that any sickness resulting in disability because of an occupational disease listed under Section 32(A) of the contract is deemed to be work-related, provided  the conditions set therein are satisfied.

Section 20(B)(4) of the  POEA contract , on the other hand, declares that if the illness, such as diabetes  mellitus, is not listed as an occupational disease under Section 32(A), the  ailment is disputably presumed as work-related.

Compensability is not limited to Section 32-A's listed occupational diseases. For as long as seafarers are able to show by substantial evidence that they suffered disabilities occasioned by a disease contracted on account of or aggravated by working conditions, compensation is availing.

The effect of the legal presumption in favor of the seafarer is to create a burden on the part of the employer to present evidence to overcome the prima facie case of work-relatedness. Absent any evidence from the employer to defeat the legal presumption, the prima facie case of work-relatedness prevails.

The Court pointed out   that it is medically accepted that stress has major effects on a person's metabolic activity, including seafarers who are  exposed to various strain and stress - physical, mental and emotional.

The effects of stress on glucose metabolism, the Court said,  are mediated by a variety of counter-regulatory hormones that are released in response to stress and that result in elevated blood glucose levels and decreased insulin action.

The Court  underscored that  stress is a potential contributor to chronic hyperglycemia or  diabetes because of a relative or absolute lack of insulin as the increase in blood glucose on account of stress cannot be adequately metabolized.

To prove that his work conditions caused or at least increased the risk of contracting the disease, the seafarer  showed that part of his duties as an Ordinary Seaman  involved strenuous workload such as assisting  in the handling and operation of all deck gear such as topping, cradling and housing of booms,  aid the carpenter in the repair work when requested; scaling and chipping paint, handling lines in the mooring of the ship, assisting  in the actual tying up and letting go of the vessel and standing  as a lookout in the vessel.

The seafarer further stated that while inside the vessel for several months, he was exposed to physical and psychological stress due to his job, lack of sleep, heat stress, emergency works and homesickness for being away from his family.

The employer , on the other hand,  failed to adduce any contrary medical findings from the company-designated physician to show that the seafarer's illness was not caused or aggravated by his working conditions on board the vessel.

There was also no showing that the seafarer is predisposed to the illness by reason of genetics, obesity or old age.

Such being  the case, the Supreme  Court considered  diabetes as compensable because  the stress and strains he was exposed to on board contributed, even to a small degree, to the development of his disease.

In Manansala, , v. Marlow Navigation Phils. (G.R. No. 208314, August 23, 2017), the Court noted that diabetes is not among Section 32-A's listed occupational diseases. As with hypertension, it is a complex medical condition typified by gradations. Blood sugar levels classify as normal, pre-diabetes, or diabetes depending on the glucose level of a patient.

The court added that Diabetes "is a clinical syndrome characterised by hyperclycaemia due to absolute or relative deficiency of insulin." It can cause several symptoms depending on its type, Type 1 or Type 2. Patients with Type 1 diabetes show more prominent symptoms, while patients with Type 2 diabetes are mostly asymptomatic.

 However, the symptoms between these two types may overlap. Other symptoms may even be inexplicit such as fatigue. Diabetes can lead to several complications, among which is suffering a stroke.

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

Final and definite disability assessments on seafarer’s benefits

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.

This was the principle on  seafarer’s disability benefits cases  reiterated  by the Supreme Court   in the recent case of Jerry Talaugon vs. BSM  Crew Services/ Schulte  Shipmgt. ( GR. No. 227934 September 4, 2019)

The company  employed the seafarer  as an oiler.

The seafarer was medically repatriated after he was hospitalized in Saudi Arabia and  was diagnosed with "Renal Colic Lumbago post Zoster Neuralgia."  

Upon his arrival in the Philippines, he was seen by a company designated doctor  wherein he was  diagnosed with "Hyperthesia, Ruled out Hansen's Disease, L4- L5 Disc Protrusion, Disc  Dessication"  and later on with a tumor in his spinal cord.  

After undergoing surgery and physical therapy, he went back to, yet, another company-designated doctor .  The  latter observed that he was still suffering lower back pain probably due to his lumbar spondylosis who then declared that his  illness  was  not work related. Said doctor, nonetheless, offered to give him a disability grading of 11.

The company­ designated physician made an assessment on seafarer's illness within the 120-day period, specifically a  rating of  Grade 11 on May 15, 2014 or 117th day since he was evaluated and had been undergoing continuous medical treatment.

The Supreme Court, however,  did not consider  said assessment as final and definite within the ambit of the existing jurisprudence.

Section 20(B) of POEA-SEC  provides that it is the primary responsibility of a company-designated physician to determine the disability grading  or  fitness  to  work  of  seafarers.

 To  be  conclusive,  however, company-designated physicians' medical assessments or reports must be complete and definite.

The guidelines that govern seafarers' claims for permanent and total disability benefits was outlined  in the case of  Elhurg Shipmanagement Phils., Inc. v. Quiogue, Jr (G.R. No. 211882, July 29, 2015):

First, the company-designated doctor 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;

Second,  if the company-designated doctor fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;

Third, if the company-designated doctor 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

Lastly, if the company-designated doctor  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

 Two (2) requisites must concur for a determination of a seafarer's condition: 1) an assessment must be issued within the 120/240 window, and 2) the assessment must be final and definitive.

The  Medical Report dated May 15, 2014 contained the following observations: "the prognosis of returning to (his) sea duties is guarded" and "If patient is entitled to a disability, his suggested  disability  grading  is Grade 11 - slight rigidity or 1/3 loss of motion of lifting power of the trunk."

The Supreme Court pointed out that this  is hardly the "definite and conclusive assessment of the seafarer's disability or fitness to return to work" required by law from the company­ designated doctor.

For there was nothing on record showing that the company designated doctor explained in detail the  progress  of seafarer's treatment and the  approximate period needed for him to fully recover.

The assessment will not be considered definitive if  the seafarer will  continue to require medical treatments thereafter.

Consequently, without a final and definitive assessment from the company­ designated doctor  on the seafarer's disability,  the Supreme Court stressed that the   same  is  deemed permanent and total by operation of law.

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.  Permanent total disability means disablement  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. It does not mean absolute helplessness.

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

Delisting as penalty in seafarer's dismissal cases.

The  maximum penalty of disqualification  from maritime employment  or delisting from  the registry of the Philippine Overseas Employment Administration (POEA) may be imposed upon an erring seafarer depending on the gravity of the offense committed.

Dismissal is the ultimate penalty that can be meted to a seafarer   because his  job is considered as property.  The Constitution commands that no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws. 

When a seafarer commits  an act considered as an offense under the POEA contract, he may be penalized by the master of the vessel with dismissal and be made to pay the cost of repatriation and his replacement.

Additionally, an administrative complaint or disciplinary action against the seafarer may be filed before the POEA, who, after due investigation, may impose penalties ranging from suspension to delisting, depending on the frequency of the violation.

In the actual imposition of penalties,   due consideration must still be given to the seafarer’s  length of service and the number of violations committed during his employ.

Where a penalty less punitive would suffice like suspension, whatever missteps may have been committed by the worker ought not to be visited with a consequence so severe such as dismissal or delisting.

There are actuations that the seafarer will immediately be meted with delisting  from the POEA registry or automatic  disqualification  from maritime employment.  

Two of the acts fall under the category of smuggling or violation of any custom rules and regulations of the Philippines and of foreign port specifically (a)  possession or use of prohibited drugs, narcotics and other contraband and (b) gun-running or possession of explosives and the like.

Another act is  assaulting a superior officer/other persons on business with the ship with the use of deadly weapon that falls under insubordination.

A seafarer may also be delisted if he is guilty of deserting or attempting to desert.

On the other hand, an official may  be delisted if he committed grave abuse of authority (with the use of deadly weapon) resulting in harm or injury to subordinate

The  POEA contract requires compliance with two basic requirements for a lawful dismissal: a just or authorized case as prescribed by law, and observance of due process.  The former comprises the substantive requirement, and the latter constitutes the procedural requirement for a valid dismissal.

The burden of proving that the termination of a seafarer  was for a just or authorized cause lies with the employer. If the employer fails to meet this burden, the conclusion would be that the dismissal was unjustified and, therefore, illegal.

To discharge this burden, the employer must present substantial evidence, which is defined as that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion, and not based on mere surmises or conjectures.

In any case of early termination, the seafarer must be accorded procedural due process which requires the “two-notice rule.” An erring seafarer is given a written notice of the charge against him and is afforded an opportunity to explain or defend himself.

Before the issuance of the second notice, the requirement of a hearing must be complied with by giving the seafarer  an opportunity to be heard. It is not necessary that an actual hearing be conducted. Should sanctions be imposed, then a written notice of penalty and the reasons for it shall be furnished the erring seafarer.

The penalties for administrative actions shall be separate and distinct from whatever appropriate criminal action that may be filed against the seafarer.

In case of an illegal dismissal, either there is no valid ground or he was not afforded due process under the “two-notice” rule, a seafarer is entitled to receive from his employers his salaries for the unexpired portion of his employment contract not merely his salaries for three (3) months for every year of the unexpired term.

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

Stress and the work-related illnesses of seafarers

A seafarer who suffered an illness on board the vessel must be compensated due to work-related stress.

The Supreme Court has recognized that any kind of work or labor produces stress and strain

It is medically accepted that stress, the Court said, has major effects on a person's metabolic activity, including seafarers who are  exposed to various strain and stress - physical, mental and emotional.

An overseas worker , having to ward off homesickness by reason of being physically separated from his family for the entire duration of his contract, bears a great degree of emotional strain while making an effort to perform his work well.

The strain is even greater in the case of a seafarer who is constantly subjected to the perils of the sea while at work abroad and away from his family.

While inside the vessel for several months, a seafarer is exposed to physical and psychological stress due to his job, lack of sleep, heat stress, emergency works and homesickness for being away from his family.

In most instances, having worked for the principal   under employment contracts that were continuously renewed, it can be said that  seafarers  spent much of their productive years with the principal; their  years of service certainly took a toll on their  body, and they could not have contracted their  illnesses elsewhere except while working for the principal. 

Chronic stress can cause a lot of different problems, and if not managed, it can ultimately lead to a medical condition.

A study made by the Centre for Occupational and Health Psychology at Cardiff University noted that the seafarer’s illness is caused by stress on board the vessel.

The study pointed out that seafaring is a dangerous occupation because it includes a number of workplace dangers in combination, something rare in other industries.

Seafarers are exposed to extreme weather conditions: rough seas and storms result in the rolling and pitching of the ship, leading to an unstable environment that makes physical work difficult.

Such conditions, along with ship type, minimal manning, rapid    turnaround, short sea passages and traffic conditions, may find seafarers           working long hours without sufficient rest.

 These factors, the study noted,   will undoubtedly result in fatigue, which has potentially disastrous consequences both for the individual in terms of reduced performance and poor health (for example,   ulcers, hypertension and hearing loss as a result of excessively noisy          machinery and vibration

Some of the illnesses considered by the Supreme  Court as compensable due to stress include cardiovascular disease, coronary artery disease, and other heart-related  ailments like stroke.

In the earlier case of  Magsaysay Mitsui OSK Marine, Inc, v. Bengson (G.R. No. 198528, October 13, 2014⁾ , the Supreme Court ruled that the seafarer’s  illness, intracerebral hemorrhage or hemorrhagic stroke, is a serious condition, and could be deadly.

As Third Mate for twelve years with the company, he was saddled with heavy responsibilities relative to navigation of the vessel, ship safety and management of emergencies. 

The seafarer  was subjected to physical and mental stress and strain: as Third Mate, he is the ship’s fourth in command, and he is the ship’s safety officer; these responsibilities have been heavy burdens on his shoulders all these years, and certainly contributed to the development of his illness. 

The Court has ruled that the list of illnesses  in Section 32-A of the  POEA Standard Employment Contract (SEC) does not preclude other illnesses  not so listed from being compensable.

 The POEA contract  cannot be presumed to contain all the possible injuries that render a seafarer unfit for further sea duties.  

 And equally significant, 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.

Permanent total disability means disablement  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. It does not mean absolute helplessness.

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

Total and permanent disability benefits of a seafarer undergoing medical treatment

A seafarer still  undergoing medical treatment  beyond the 120/ 240 day period despite an assessment from the company designated physician is entitled to total and permanent disability benefits.

This principle  was reiterated by the Supreme Court in the case of Dario Carcedo v. Maine Marine Philippines, Inc./ Misuga Kajun Co., Ltd (G.R. No. 203804, April 15, 2015).  

The seafarer’s  foot was wounded because of his safety shoes while on board the vessel. 

Despite medication, his foot’s condition worsened when he slid down the deck and bumped his right foot. He felt pain in the back of his swollen leg and developed fever and headache.

When  he was treated at a Japanese hospital, the doctor diagnosed the seafarer  with an open fracture of the right major toe bone with a suspicion of sepsis.

Upon his repatriation in the Philippines,   the  seafarer initially   underwent debridement ( surgical removal of contaminated tissue) of the wound of the right big toe. The toe was later amputated.

On  March 24,  2009, the company doctor  recommended “an impediment disability grading of 8%  for Loss of first toe (big toe) and some of its metatarsal bone”.

Due to infection of the amputated stump, the seafarer  was again admitted to the hospital where the right  first metatarsal bone was removed.  

 The seafarer’s personal doctor noted that the absence of the first and second toe which caused him to walk on the lateral aspect of his left foot with a  cane. He  had some pain on weight bearing.

The Supreme Court said the schedule of disabilities in the collective bargaining agreement (CBA), if there is one, or the POEA standard employment contract , should be the primary basis for the determination of a seafarer’s degree of disability.

However, the POEA contract  and the CBA cannot be read in isolation from the Labor Code and the Amended Rules on Employee Compensation (AREC) . Otherwise, the disability rating of the seafarer will be completely at the mercy of the company-designated physician, without redress, should the latter fail or refuse to give one.

The Supreme Court said that the that the 24 March 2009 disability assessment made by the company doctor  was  not definitive. The said disability assessment was merely  an interim one because the seafarer  continued to require medical treatments even after 24 March 2009.

He was confined in the hospital from 20 April 2009 to 6 June 2009, where he underwent serial debridements, curettage, sequestrectomy and even amputation of the right first metatarsal bone.

Since the seafarer required further medical treatments beyond the 120 day period, his total and temporary disability was extended.

The company-designated physician then had until 240 days from repatriation to give the final assessment.

However, the company-designated physician failed to give a definitive impediment rating of the seafarer’s disability beyond the extended temporary disability period, after the 120-day period but less than 240 days.

Neither was there a certification from the company-designated physician as to the seafarer’s fitness for sea service. And even if it had, it would be belied by his subsequent reports on, and the fact of, the continuation of medical treatments and hospitalization of the seafarer after the issuance of the 24 March 2009 report

By operation of law, the seafarer’s total and temporary disability lapsed into a total and permanent disability.

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.

Permanent total disability means disablement  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. It does not mean absolute helplessness.

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