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Supreme Court declares crewmember partially disabled only as the disability does not prevent him from performing his main duties


Philippine Shipping Update – Manning Industry




The crewmember was hired as Assistant Stage Manager on a cruise ship tasked to assist the Manager, supervise, and organize the stage before, during, and after every show in the vessel.  The crewmember started to feel back pains after he moved several boxes to be used for the show. He was eventually repatriated for medical treatment.  Upon repatriation, he was seen by the company-designated physician (CDP) and was diagnosed with disc degeneration, L4-L5, for which he was advised to undergo physical therapy (PT) sessions. After crewmember completed his PT sessions, he was advised to undergo surgery which he refused.  Thus, the CDP issued a Final Medical Report declaring the crewmember as "deemed maximally medically improved' because definitive management was no longer possible on account of his refusal to undergo surgery. The CDP also declared him partially and permanently disabled with Grade “8” disability -moderate rigidity or 2/3 loss of motion or lifting power of the trunk.
Unsatisfied, the crewmember consulted his doctor of choice who found him permanently and totally disabled to work at his previous occupation because he continues to experience back pain. His back is stiff, making it difficult for him to bend and pick up objects from the floor. He could not lift heavy objects. Sitting or standing for a long time, makes his discomfort worse. He has difficulty running and climbing up or going down the stairs.
The crewmember then filed a claim for full disability compensation with the Panel of Voluntary Arbitrators (PVAs).  The PVAs awarded maximum disability benefits to the crewmember as there was no mention by the CDP that he was fit to work and the incapacity to work lasted for more than 240 days.  The award of PVAs was affirmed by the Court of Appeals.
When the case reached the Supreme Court, the award was modified to the equivalent of the Grade “8” disability issued by the CDP.   

The company-designated physician issued a final medical assessment within the prescribed period of 120 days.

The Court explained that a final medical assessment must be issued within the period of 120 or 240 days, as the case may be and that the assessment must be final and definitive. The responsibility of the CDP to arrive at a definite assessment within the prescribed periods necessitates that the perceived disability grading has been properly established and inscribed in a valid and timely medical report. To be conclusive and to give proper disability benefits to the seafarer, this assessment must be complete and definite, otherwise, the medical report shall be set aside and the disability grading contained therein shall be ignored.
As case law holds, 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.
ln the case, the crewmember underwent PT sessions under the care of the CDP. After he was diagnosed with "disc degeneration, L4-L5," the CDP advised him to undergo surgery, but he refused and chose to go through treatments and PT sessions. After he completed his third PT session, the CDP finally assessed him with permanent and partial disability with Grade “8” - 111 days from the day he reported to the local manning agents. The CDP found that no further treatment intervention can be given to the crewmember due to his refusal to undergo the recommended surgery. As such, the Grade “8” permanent and partial disability assessment was a final and complete medical assessment issued within the 120-day prescribed period.
A total disability only becomes permanent upon the expiration of the 120 or 240-day prescribed treatment period without a declaration of either fitness to work or the existence of a permanent disability. The CDP having declared the crewmember’s disability to be permanent and partial after 111 days from his repatriation, the disability cannot be deemed to have automatically become permanent and total.

The disability is partial and permanent

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, in turn, is defined as 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.
In determining whether a disability is total or partial, what is crucial is whether the employee who suffered from disability could still perform his work notwithstanding the disability he met. A permanent partial disability works on the premise that such partial injuries did not disable a seafarer to earn wages in the same kind of work or similar nature for which he was trained.
Here, while the crewmember lifted pieces of equipment (boxes) in the course of his employment which allegedly caused his injury, such act was not his main responsibility as the ship's Assistant Stage Manager. His task was to assist the manager in the preparation of the venue before, during, and after performances. This includes cueing the lighting and sound technicians; managing the backstage and onstage area during performances; calling actors for rehearsals and performances; creating and setting up rehearsal schedules; and maintaining props and set during performances. The crewmember was not primarily tasked to carry objects and pieces of equipment. As stated by his own doctor, the crewmember’s injury merely gave him difficulty to pick up objects from the floor impeding him from lifting heavy objects. Notably, the 2/3 loss of the lifting power of his trunk would not prevent him from performing his main tasks as an Assistant Stage Manager, unlike in the case of other able seamen who are expected to do strenuous manual work. Considering that the crewmember’s injury would not disable him to earn wages in the same kind of work or similar nature for which he was trained, the CDP aptly assessed his disability as partial and permanent with Grade “8” impediment.

The assessment of the CDP prevails

The Court has consistently and repeatedly upheld the findings of the CDP, who has an extensive opportunity to track the physical condition of the seaman in a prolonged period of time versus the medical report of the seafarer's personal doctor, who only examined him once.
In this case, the CDP had thoroughly examined and treated the crewmember from the time of his repatriation until his disability grading was issued. Under the care of the CDP the crewmember underwent treatments, MRI, and PT sessions. The CDP determined the need of respondent to undergo surgery but he refused. Notably, the CDP even referred the crewmember to another Orthopedic Spine Surgeon who recommended that he must undergo surgery. However, crewmember declined and instead chose to
have sessions of treatment and PT.
In contrast, the crewmember’s doctor attended to him only once. As such, the assessment of the CDP is more credible for having been arrived at after months of medical attendance and diagnosis, compared with the assessment of crewmember's doctor of choice done merely in one day.

United Philippine Lines, Inc. and/or Holland America Line Westours, Inc. et. al. vs. J.  A. G.R. No. 245960, July 14, 2021; Third Division, Associate Justice Henri Jean Paul Inting, ponente;  (Attys. Florencio Aquino and Lovereal Ocampo of DelRosarioLaw handled for vessel interests).




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 “‘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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