Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  27 October 2017 (Issue 2017/18)

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Complaint filed before 240 days does not give rise to legal presumption of permanent total disability
 
Seafarer was engaged as an Ordinary Seaman.  While removing ice from the deck of the ship, seafarer accidentally slipped and hit his lower back on the steel deck.  He was eventually examined and treated in a shore clinic and was initially diagnosed with Lumbago with suggestion for his repatriation for further treatment.  Upon repatriation, the seafarer was referred to the company's accredited doctors for treatment and medical evaluation. He underwent several sessions of physical therapy, but the pain in his lumbar area still persisted. The seafarer then underwent magnetic resonance imaging (MRI) which showed that he was suffering from Multilevel discogenic and osteophytic central canal and bilateral foraminal stenosis as described, L4-L5 and L5-Sl. Disc dessication, L4-L5 and L5-Sl 11.   Seafarer then underwent two surgical procedures (lumbar laminectomy and foraminotomy) to address his herniated disc, as advised by the company-designated doctor.  He then underwent further physical therapy.  Eventually, 195 days from the time the seafarer was injured, the company-designated doctor issued a medical report stating that the functional capacity testing was done which seafarer did not pass due to back pain on certain motions.  Seafarer’s prognosis is fair to good and if he will pass the functional capacity testing after adequate flexibility is attained (which is seen to be accomplished within 2 to 3 more months of further therapy), he can resume sea duties. The interim disability assessment given was Grade 8 based on the POEA Contract with recommendation to continue his therapy sessions.
 
Meantime, seafarer went to see his chosen physician for a second medical opinion.  His physician echoed the findings of the company-designated doctor but opined that seafarer is already permanently unfit for further sea duty in any capacity.
 
On the basis of the medical report from his doctor, the seafarer filed a complaint for disability benefits with the Labor Arbiter 197 days from the time he was injured.   The company denied the claim on the basis that the company-designated doctor was of the opinion that seafarer will eventually be able to resume his sea duties.
 
The Labor Arbiter awarded full disability benefits on the basis that the seafarer was unable to work for more than 120 days and that resumption of work cannot be expected as he was still made to undergo further therapy sessions.  The NLRC agreed with the Labor Arbiter and also believed that the seafarer is already permanently disabled considering the findings of the latter’s chosen doctor and that of the company-designated physician.
 
However, the Court of Appeals, while noting that a permanent disability exists, reduced the award of disability benefits to the equivalent of grade “8” as there was no factual basis for the award of full benefits.
 
The Supreme Court agreed with the Court of Appeals that seafarer is not entitled to permanent disability benefits but only to Grade 8 disability benefits.
 
The Court again stressed that a temporary total disability only becomes permanent when so declared by the company-designated physician 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.
 
Here, the Court noted that the seafarer filed his complaint just 197 days after he sustained his injury and while he was still undergoing treatment.  Since the company-designated doctor has not declared that seafarer is unfit to work within the 240-day period, and said period has not lapsed when seafarer filed his complaint, the seafarer cannot yet be legally presumed as permanently and totally disabled to be entitled to permanent and total disability benefits.
 
Also, the Court debunked the argument of the seafarer that the uncertain effect of further treatment intimates that his injury would bar him from performing his usual work as a seafarer which would make him permanently and totally disabled.  The Court held that the company-designated physician was of the opinion that the prognosis of the seafarer’s condition was fair to good which does not indicate permanent and total disability.
 
Lastly, the Court also concurred with the appellate court that there is no factual basis to award maximum disability benefits to the seafarer considering that the legal presumption of permanent and total disability was unavailing.  As such, the grade “8” disability was sustained by the Court as it was in accordance with the POEA-SEC Schedule of Disability as well as the provision that disability shall be based solely on the disability gradings provided in the contract and shall not be measured by number of days a seafarer is under treatment or days in which sickness allowance is paid.  
 
Eugenio Gomez vs. Crossworld Marine Services, Inc, Golden Shipping Company S.A. et al., G.R. No. 22002, August 2, 2017, Second Division, Associate Justice Diosdado Peralta, ponente

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