Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., April 4, 2017 (Issue 2017/06)

In this issue:

Supreme Court invalidates opinion of third doctor as not definite and conclusive; seafarer was awarded full disability benefits as unable to work for more than 240 days

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee

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Supreme Court invalidates opinion of third doctor as not definite and conclusive; seafarer was awarded full disability benefits as unable to work for more than 240 days   

During employment, the seafarer suffered a fracture to his right femur because of a hard fall.  Upon his repatriation, he was referred to the company-designated doctor for examination and treatment.  After 92 days of treatment, the company-designated doctor assessed the seafarer’s disability at grade “10”.  On this basis, the company offered to him the amount corresponding to the grade “10” disability.  Not satisfied, the seafarer sought the opinion of his personal doctor who assessed him with a grade “3” disability.  On this basis, he claimed maximum disability benefits on the argument of inability to return to work.

The seafarer filed a claim with the Labor Arbiter and while the case was pending, the parties agreed to appoint a doctor who will issue a third medical opinion.  The third doctor issued an opinion stating that seafarer is suffering from a grade “9” disability but in addition, stated that seafarer is “not yet fit to work and should undergo rehabilitation”.

On the basis of the opinion of the third doctor, the Labor Arbiter rendered a decision awarding to the seafarer disability benefits based on the grade “9” assessment.  On appeal, the NLRC held that the seafarer is entitled to full disability benefits as the assessment of the third doctor was issued after 240 days.  The Court of Appeals, on the other hand, maintained the decision of the Labor Arbiter and reasoned that the 240 day period to render an assessment is not applicable to the third doctor.

When the case reached the Supreme Court, the NLRC’s award of full disability benefits was reinstated.

The 240 days rule apply only to the assessment of the company-designated doctor and not the third doctor

The provision of the POEA Contract clearly states that it is the company-designated doctor who is given the responsibility to make a conclusive assessment on the degree of seafarer’s disability and his capacity to resume work within 120/240 days.  The parties, however, are free to disregard the findings of the company-designated doctor, as well as the chosen doctor of the seafarer, in case they cannot agree on the assessments issued and jointly seek the opinion of a third doctor.

However, the provision of the POEA Contract does not state a specific period within which the third doctor must render his or her disability assessment.  This is only reasonable since the parties may opt, at any time, to resort to a third opinion even during the conciliation stages to abbreviate the proceedings and these usually transpire way beyond the 120/240 day period for medical treatment.  Thus, the Supreme Court held that the 120/240 day period is applicable only to the company-designated doctor and not the third doctor.  

The third doctor’s opinion must be definite and conclusive in order to be binding between the parties

The Court noted that the company and the seafarer are indeed bound by the opinion of the third doctor if they choose to appoint one.  However, similar to what is required of the company-designated doctor, the appointed third doctor must likewise arrive at a definite and conclusive assessment of the seafarer’s disability or fitness to work before his opinion can be valid and binding between the parties.

In this case, despite the grade “9” disability assessment issued by the third doctor, seafarer’s medical condition remains unresolved.  The third doctor’s opinion would show that the assessment is not yet final considering that further rehabilitation is necessary.  As such, it is inconclusive and indefinite and cannot be considered as binding between the parties.

Seafarer entitled to full disability benefits as unable to work for more than 240 days

The Court noted that there is evidence to show that seafarer has remained incapacitated to work for more than 240 days as he was even declared unfit to work by the third doctor.  Moreover, the inconclusive assessment of the third doctor and the seafarer’s prolonged disability only served to underscore that the company-designated physician himself failed to render a definitive assessment of seafarer’s disability.

As seafarer was actually unable to work even after the expiration of the 240 day period and there was no final and conclusive disability assessment made by the third doctor on his medical condition, he should be entitled to full disability benefits.  It should be remembered that in disability compensation, it is not the injury which is compensated, but rather the incapacity to work resulting in the impairment of one’s earning capacity.
   
Reynaldo Sunit vs. OSM Maritime Services, Inc. DOF OSM Maritime Services A/S and Capt. Adonis Donato, G.R. No. 223035,February 27, 2017; Third Division, Associate Justice Presbitero Velasco, Jr., ponente (Attys. Florencio Aquino and Richard Sanchez of Del Rosario & Del Rosario handled for vessel’s interests)

Update:  Zambales / Provincial Coast Watch Environmental Monitioring System User Fee

The Maritime Industry Authority (MARINA) has issued Advisory No. 2017-09 dated 9 March 2017 reiterating the invalidity of the original Ordinance No. 2015-18 of the Provincial government of Zambales pursuant to the Department of Justice (DOJ) Opinion No. 8 dated 7 March 2016.

However, the original Ordinance No. 2015-18 has been amended by the Provincial Government of Zambales with the issuance of a new Ordinance No. 2016-68 adopted on 14 November 2016 and is the basis of the invoices received this year. We are currently obtaining fresh opinions from the Philippine Coast Guard, the Maritime Industry Authority and other concerned government agencies on the new Ordinance No. 2016-68 and will issue updates in due course.

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2017 AsiaLaw Profiles:  Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution  & Litigation, Insurance, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

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