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Findings of seafarer’s doctor disregarded for failure to activate third doctor procedure

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 22 January 2021 (Issue 2021/02)

 

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Findings of seafarer’s doctor disregarded for failure to activate third doctor procedure
 
The seafarer was hired by the company as Chief Cook.  During his employment, the seafarer suffered from high blood pressure and was medically repatriated.  Upon repatriation, the seafarer was referred to the company-designated physician for medical examination and further treatment.  After treatment and having undergone the necessary tests, the company-designated physician declared the seafarer fit for duty. The seafarer executed a Certificate of Fitness for Work to affirm the findings of the company-designated physician. 
 
Seafarer alleged that despite being declared fit, the company did not rehire him.  When he applied with other employers, he was also not hired because of his condition.  For this reason he filed a complaint against the company claiming disability benefits and then sought the opinion of his personal doctor who certified that he was medically unfit to work in any capacity as seaman.
 
The Labor Arbiter awarded the seafarer full disability benefits considering that he could no longer qualify as a person fit for work at sea because of his medical condition and is taking maintenance medications. The Labor Arbiter further noted that the fact that the company did not rehire the seafarer or that he was unable to find employment with other manning agencies, support the conclusion that he is not physically fit to work.
 
Upon appeal to the NLRC, the decision of the Labor Arbiter was reversed and the claim was dismissed as the seafarer failed to substantiate his claim that the conditions of his employment caused or aggravated the risk of contracting his illness. Further, the seafarer was already declared fit by the company-designated physician within the 120 day period.  The NLRC also disregarded the findings of the seafarer’s personal doctor as it was obtained months after he was declared fit.
 
Upon petition with the Court of Appeals, the decision of the Labor Arbiter awarding disability benefits was reinstated.  Finally, when the case reached the Supreme Court, the claim was once again denied.

 
Seafarer was declared fit to resume sea duties
 
The Court explained that the seafarer, upon sign-off from his vessel, must report to the company-designated physician within three (3) days from arrival for diagnosis and treatment. For the duration of the treatment but in no case to exceed 120 days, the seafarer is on temporary total disability as he is totally unable to work. He receives his basic wage during this period until he is declared fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA Contract.  If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. The seaman may of course also be declared fit to work at any time such declaration is justified by his medical condition. 
 
Before a seafarer may claim permanent total disability benefits from his employer, it must be first established that the latter's company-designated physician failed to issue a declaration as to his
fitness to engage in sea-duty or disability grading within the 120-day period or 240-day extension provided for by law.  The Court held that the120-day period should be reckoned from the time the seafarer reported to the company-designated physician.  If the company-designated physician fails to give his assessment within the period of 120 days with sufficient justification, then the period of diagnosis and treatment shall be extended to 240 days.
 
In this case, the company-designated physician assessed the seafarer to be fit to work after 89 days of treatment which is well within the prescribed 120-day period. Significantly, this finding was not disputed nor controverted by the parties.  As he was declared fit to resume sea duties, there was no basis for the seafarer to claim total and permanent disability benefits from the company.


The findings of the company-designated physician should prevail
 
The Court upheld the findings of the company-designated physician that seafarer is already fit to work.  The Court held that the rule is settled that 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, and that in case of conflicting medical assessments between the company-designated physician and the seafarer's own physician, referral to a third doctor is mandatory.  In the absence of a third doctor's opinion, it is the medical assessment of the company-designated physician that should prevail.   In other words, the company can insist on its disability rating even against a contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking for the referral to a third doctor who shall make his or her determination and whose decision is final and binding on the parties.
 
The seafarer in this case pursued his claim without observing the procedure above. The Court stated that it is only through this procedure provided by the POEA Contract that seafarer can question the fit-to-work certification of the company-designated physician and compel the company to jointly seek an assessment from a third doctor. However, instead of setting into motion the process of selecting a third doctor, he preempted the mandated procedure by filing the instant complaint for permanent total disability benefits without referring the conflicting opinions to a third doctor for final determination. On this point, non-referral cannot be blamed on the company as the opinion of seafarer's own physician was only sought two months after the complaint was filed for disability benefits.  In the absence of a third doctor resolution, the assessment of the company-designated physician should stand.
 
At any rate, the certification issued by seafarer’s physician cannot prevail over the conclusions of the company-designated physician. The company-designated physician was in a better position to assess the illness or disability of the seafarer considering that their findings were based on a number of tests and medical evaluation.  On the contrary, the recommendation of seafarer’s physician was based on a single medical report who examined him only once, which, we note, was issued several months after his fit-to-work certification was issued by the company-designated physician. Thus, as between the findings of the company-designated physician, and the physician designated by the seafarer, the former deserves to be given greater evidentiary weight.
 
In any event, the certification issued by seafarer's own physician could not serve as basis for his claim for permanent and total disability benefits because it merely stated that he is unfit to resume sea duties. It did not state the disability grading as required by the POEA Contract. 
 
Philippine Transmarine Carriers, Inc., et. al, and/or General Maritime Management LLC vs. A.S., G.R. No. 207511, October 5, 2020, Second Division , Associate Justice Ramon Paul Hernando, ponente (Attys. Herbert Tria and Aldrich Del Rosario of DelRosarioLaw handled for vessel interests).

 

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TheAsia Business Law Journal has named Managing Partners Arturo Del Rosario, Jr. and Ruben Del Rosario and Senior Partner Joseph Rebano as one of the Philippines Top 100 Lawyers in their recently published list.

The Top 100 list of lawyers can be accessed as follows:

https://www.vantageasia.com/asia-business-law-journal/Philippines-lawyers/#INTRODUCTION

 

DelRosarioLaw welcomes Ruben Jose G. Del Rosario Jr., as a Junior Associate of the firm. He is a 2011 Bachelor of Science in Management, Major in Legal Management graduate of Ateneo de Manila and a 2017 Bachelor of Laws graduate of San Beda College - Alabang.

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DelRosarioLaw Senior Partner Charles Jay Dela Cruz was elected as member of the Board of Trustees of the Philippine Bar Association (PBA) for the term 2018-2019.

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Downloads

  • IRR Seafarer's Protection Act
  • Seafarers Protection Act
  • ORDINANCE No. 28 Series of 2015 Zambales, Philippines
  • NLRC MEMO on 3rd Doctor
  • NLRC Rules of Procedure 2011
  • Standard Terms and Conditions of Del Rosario Law
  • POEA SEC - 2010 Amendments
  • POEA Memorandum Circular No. 10 Series of 2010
  • Governing Board Resolution No. 09 Series of 2010

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