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Company-Designated Physician should give valid justification for extension of treatment for 240-day rule to apply


Philippine Shipping Update – Manning Industry



The company-designated physician should justify extension of treatment from 120 days to 240 days
Seafarer had a back injury while lifting heavy loads.  He was referred to a shore doctor who diagnosed him with lumbar spondylosis.  Upon repatriation, he was referred to the company-designated physician (CDP) who diagnosed the seafarer with L2-S1 Disc Protrusion and incidental finding of Cholecystitis.  Orthopedic Surgeon advised seafarer to undergo rehabilitation and take medication.  Due to persistent lower back pain, surgery was eventually recommended which the seafarer declined opting for conservative treatment.  On 24 January 2013 (112 days of treatment), the CDP opined that interim assessments are Grade 12 and Grade 8. On 26 April 2013 (202 days of treatment), the CDP issued a final disability assessment of Grade 8.  In the interim, the seafarer filed a complaint for disability benefits on 25 February 2013.
On 30 April 2013, seafarer consulted his personal orthopedic surgeon, who found him to be permanently unfit for sea duty with a Grade 1 disability. In view of this, seafarer claimed full disability benefits. However, the company argued that the seafarer is entitled only to a grade 8 disability.
The Labor Arbiter awarded full disability benefits to the seafarer considering that the assessment of the CDP was issued beyond the 120-day period.  This decision was upheld by the NLRC on appeal.  However, the Court of Appeals modified the award and limited the disability benefits to the equivalent of a Grade 8 disability considering that the assessment was timely issued within the 240 day period.  The Supreme Court affirmed the denial of full disability benefits.
The rule on the 120/240-day medical assessment period for seafarers to claim permanent and total disability benefits
The Supreme Court clarified that the 120 day rule was followed prior to 6 October 2008 as decided in the case of Crystal Shipping, Inc. v. Natividad.  However, on 6 October 2008, Vergara v. Hammonia Maritime Service, Inc. was promulgated which modified the ruling in the Crystal Shipping Case and extended the 120 day treating period to 240 days if the seafarer requires further medical attention.  Thus, if the complaint for disability benefits was filed prior to 6 October 2008, the 120-day rule enunciated in Crystal Shipping applies. However, if such complaint was filed from 6 October 2008 onwards, such as the present case, the 240-day rule as clarified in the case of Vergara applies.
The need for the CDP to issue a justification for the 120-day treating period to be extended to 240 days
The Supreme Court clarified that a claim for full disability benefits may still prosper even if filed within the 240-day period, but after the 120-day period if the CDP failed to declare within the 120-day period that the seafarer requires further medical attention.  The Court noted that in previous cases, they awarded full disability benefits to a seafarer when the CDP issued a final disability assessment after the lapse of the 120-day period but did not provide any justifiable reason to extend the 120-day treating period to 240 days.
In this case, the Court found that the CDP was justified in extending the treating period to 240 days.  On 24 January 2013 (112 days of treatment), the CDP noted that the seafarer still had to undergo further treatment and evaluation in view of his persistent back pain.
Since the CDP’s final medical assessment was justifiably issued beyond the 120-day period but within 240 days, the Court found the seafarer not entitled to full disability benefits. The Court emphasized that a temporary total disability only becomes permanent when declared by the CDP within the periods he/she is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a  permanent disability. Thus, in view of the CDP’s final assessment within the 240-day period, the seafarer is only entitled to Grade 8 disability benefits.
The seafarer failed to follow the third doctor rule 
Since the CDP and the personal doctor of the seafarer had conflicting medical assessments, the seafarer should have referred the matter to a third doctor, jointly agreed upon the parties, which he failed to do.  The Court pointed out that the referral to a third doctor is mandatory when: (1) there is a valid and timely assessment by the CDP and (2) the appointed doctor of the seafarer refuted such assessment. In view of the absence of a third doctor's assessment, the Court found the CDP’s assessment should prevail. Further, more credence is given to the findings of the CDP as he was able to assess the seafarer after an extensive medical treatment, where, seafarer’s personal doctor only assessed him once.
Finally, the Court noted that the seafarer filed his complaint even before he consulted his personal doctor which shows that at the time he filed the claim, he had no cause of action.
D.R., substituting her late husband E.R. Vs. Philippine Transmarine Carriers, Inc., Norwegian Crew Management A/S et. al., G.R. No. 218311, October 11, 2021; Second Division, Associate Justice Ramon Paul Hernando, ponente


DelRosarioLaw is happy to announce the promotion of MA. GINA GUINTO as a PARTNER of the firm. 
With over 15 years of experience in the firm, Gina has handled a number of high profile maritime casualties, multi-jurisdictional maritime labor employment issues and has specialized in maritime labor practice in the NCMB, NLRC and the POEA.  She also handles board of marine inquiries, illegal dismissal cases, cargo and corporate accounts.
Gina is a Business Management graduate from the University of the Philippines Cebu (Cum Laude) and a Juris Doctor/law graduate from the Ateneo de Manila University School of Law (with Second Honors).

The Firm also announces the promotion of Meighan E. Sembrano as Senior Associate.  Meighan joined DelRosarioLaw in 2017.  She holds a degree in Bachelor of Arts in Mass Communication from Ateneo de Davao University and obtained her law degree from San Beda Alabang in 2016.  She has successfully passed the P&I Qualification Module 1: The Shipping Business in 2021.  Her expertise include handling labor dispute issues such as crew claims and illegal dismissal cases.  She has likewise assisted in wet-shipping matters.
DelRosarioLaw also welcomes the addition of Jesselle Bigalbal-Quijano as Junior Associate of the Firm.  Jesselle is a 2006 HRIM - Culinary graduate of De La Salle College of St. Benilde, and a 2019 Juris Doctor graduate of DLSU College of Law. She was admitted to the Bar in April 2020.
DELROSARIO PANDIPHIL proudly announces the promotion of the following handlers as Claims Executives:
Carrie S. Hernandez, with a degree in Office Administration joined Pandiphil in 2009.  Carrie has handled various crew claims such as assisting settlements of personal effects for international and local collisions, monitoring of seafarer’s condition and reviewing of related expenses.  She has also assisted in various seafarer’s repatriation as well as settlements in the National Labor Relations Commission and National Conciliation and Mediation Board.
Janice M. Garcia, joined Pandiphil in 2012 with a degree in Bachelor of Arts major in Political Science.  She has since been handling crew claims and post–medical repatriation.  She is proficient in dealing with various local manning agencies by ensuring to provide quality service with integrity and efficiency.     
Our congratulations to Gina, Meighan, Carrie and Janice and our warmest welcome to Jesselle.


AAreas of Specialization:  Labour & personal injury, litigation and dispute resolution, corporate and commercial, shipping and admiralty, intellectual property, cargo claims and charter party, transport, insurance and reinsurance, arbitration and ADR, immigration

 “‘Outstanding’ shipping boutique Del Rosario & Del Rosario is regularly sought out by the international group of P&I clubs as well as insurance companies and cruise lines. The firm has expertise in all aspects of shipping matters including labour, personal injury, vessel arrest, collisions, salvage, oil pollution, damage of cargoes, bunker claims, protection and indemnity, and ship finance. Its notable IP group has also been engaged by global giants such as Facebook, Instagram, LinkedIn and Sony”. 2021 AsiaLaw Profile
“Specialising in maritime law, Del Rosario & Del Rosario is best known for acting for multinational clients in disputes relating to oil pollution, damaged cargo, salvage and vessel arrest. The group also has an extensive labour practice which is active in a full range of disputes involving Filipino seafarers. Del Rosario advise a variety of noteworthy clients, including shipping companies, insurers and P&I clubs.” 2021 Legal 500 Asia Pacific.





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Edmon Ruiz

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