MEDICAL TREATMENT TO BE GIVEN TO THE SEAFARER NOT LIMITED OR CONFINED TO THE CAUSE OF REPATRIATION; CBA NOT APPLICABLE AS FACT OF "ACCIDENT" NOT PROVEN

Seafarer was engaged as a cook and was covered by a Panhellenic Seamen's Federation-International Bargaining Forum Collective Bargaining Agreement (CBA) in addition to his POEA Contract. Sometime in June 2018, seafarer alleged that he heard a loud metallic sound after a cargo hold fell directly above where he was working followed by a high tune ringing in his right ear, accompanied by blurring of vision and headache. He was diagnosed with infected external auditory canal and perforated tympanic membrane on his right ear. 
 
Upon repatriation, seafarer was referred to the company-designated physician (CDP).  Tests showed mild conductive hearing loss on the right ear and severe hearing loss on the left ear. The CDP reported that seafarer’s left hearing acuity is severe and may improve with hearing aid. For his right ear, the seafarer underwent surgery and declared fit to work after treatment.   Seafarer disagreed with the CDP and obtained a second medical opinion where he was declared totally and permanently disabled because of his left ear condition.  This became the basis of seafarers claim for disability benefits.
 
The Voluntary Arbitrators (VAs) awarded full disability benefits to the seafarer under the CBA noting that he is now permanently and totally disabled.  The VAs did not consider the lack of a third doctor’s opinion and based their decision on the findings of the CDP’s and seafarer’s doctor.
 
The Court of Appeals (CA) reversed the VAs and denied the claim for disability benefits.  The CA concluded that the right ear condition was already resolved as no complaint was made by the seafarer to the CDP.  Also, the left ear condition was not the cause of his repatriation.  Lastly, the CA noted that the seafarer did not comply with the third doctor procedure.
 
Upon appeal to the Supreme Court (SC) , seafarer was awarded disability benefits.
 
The SC held that the third doctor procedure guideline provides that the assessment of the CDP will prevail if the seaman’s actions prevent the appointment of a third doctor unless the same is clearly biased, i.e., lacking in scientific basis or unsupported by medical records.
 
In this case, procedures administered to the seafarer showed that the hearing loss on his left ear was diagnosed as early as two days after repatriation. At that time, the ENT specialist already noted that seafarer showed mild conductive hearing loss on the right ear and severe hearing loss on the left ear. Later, the ENT reported that seafarer’s left hearing acuity is severe and may improve with hearing aid. The recommendation to use a hearing aid is palliative in nature because the device will not cure seafarer’s hearing loss. While the perforation of seafarer’s right eardrum, which was the cause of his repatriation, was medically resolved during the post-repatriation surgery, evidence shows that the loss of hearing on his left ear was simply dismissed by the CDP.  The hasty issuance of a Fit-to-Work Certification by the CDP, without first addressing or without any definite declaration as to the left ear hearing loss, is not the final medical assessment envisioned by law. It is an abdication of the CDP’s obligation to issue a final, conclusive, and definite assessment to determine a seafarer's fitness or unfitness to work. As such, there is no occasion for the application of the mandatory third-doctor procedure in this case because the act of the CDP effectively converted seafarer's temporary total disability to permanent total disability. 
 
The Court also stressed that there is nothing in the POEA Contract that would suggest that the medical treatment to be given to the seafarer must be limited or confined to the cause of repatriation.  Any illness complained of, and/or diagnosed during the mandatory post-employment medical examination (POME) is deemed existing during the term of the seafarer's employment, and the employer is liable therefor. This is true, regardless of whether the existing illness was the immediate cause of a medical repatriation. 
 
As to the correct amount of disability compensation, there is no evidence on record to show that seafarer's illness was the result of an accident. To recall, seafarer alleged that he heard a very loud metallic sound from a cargo hold that collapsed on the floor above the galley where he was working. He maintains that such loud sound damaged his sense of hearing causing his disability.  The burden of proof belongs to the seafarer as the party making the crucial allegation to establish that the disability was due to an accident on board the vessel.  In this case, apart from the medical reports issued by the offshore doctors and the CDP, seafarer failed to present any evidence to prove that he suffered an accident on board the ship which would justify his disability claim under the CBA. As such, the Court deems it proper to apply the POEA Contract and grant him instead disability benefits in the amount of USD60,000.00.
 
L. J. vs. Technomar Crew Management Corp. et.al., G.R. No. 255889. July 26, 2023, Second Division, Associate Justice Mario Lopez (ponente)
 
Author’s Note:  While the Court stated that the medical treatment to be given to the seafarer must not be limited or confined to the cause of repatriation, said condition which was not the cause of repatriation must still be reported within three working days from the date of repatriation.  Failure to do so would result in the forfeiture to claim benefits based on said condition. 

FIRM NEWS

DEL ROSARIO & DEL ROSARIO NAMED AS LABOR AND EMPLOYMENT LAW FIRM OF THE YEAR AWARD FOR 2023 BY THE ASIAN LEGAL BUSINESS

Del Rosario & Del Rosario was named as Best Labor and Employment Law Firm in the Philippines by the Asian Legal Business in the 8^th Annual ALB Philippine Law Awards 2023. 
 
Asian Legal Business (ALB) is owned by Thomson Reuters, a world leading source of information for businesses and professionals. ALB awards are based on votes, references and qualitative information received from other senior legal professionals in the Philippines. 
 
We share this recognition with our clients and friends whose continued support over the years only strengthens our resolve to provide better and quality service. Cheers!

WEST OF ENGLAND ATTENDS DEL ROSARIO'S FAMILIARIZATION PROGRAM

Representatives from West of England P&I Club participated in the DR Familiarization Program last 12-16 February 2024. Joining the program were Chris Edwards (London office), Filina Sarri (Greece office) and Rachel Baker (Hong Kong office). The program consisted of in-house seminars conducted by DR Partners, visits to the labor tribunals, seafarer’s union, PEME and post-employment medical clinics as well as manning agents.

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