Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 26 January 2018 (Issue 2018/02)
 
Supreme Court rules that failure to comply with doctor recommended procedure is medical abandonment

During employment, the seafarer slipped and fell on his back.  He was referred to a shore doctor who initially diagnosed him with acute lumbago and recommended repatriation for further examination and treatment.
 
Upon further examination of the company-designated physician the seafarer was diagnosed with lumbosacral muscular spasm with mild spondylosis L3-L4.  In the interim, the seafarer was assessed with a grade “10” disability and was scheduled to undergo a bone scan.  Instead of appearing at the scheduled date of bone scan examination, the seafarer consulted his own doctor who determined him to be unfit to work as a seaman in any capacity.  Nevertheless, in the medical report of seafarer’s chosen doctor, it was also recommended that he undergo a bone scan and EMG-NCV to determine the exact problem of his lumbar spine which is consistent with the recommendation of the company-designated physician.
 
Armed with the assessment from his chosen doctor, the seafarer filed a complaint for full disability benefits with the Labor Arbiter.
 
The Labor Arbiter, on his own, determined that seafarer is suffering from a grade “6” disability in accordance with the POEA Schedule and based the award of benefits on said finding.  On the other hand, the NLRC awarded the maximum disability benefits on the reasoning that seafarer is already considered permanently and totally disabled as he can no longer resume his former work.  The ruling of the NLRC was affirmed by the Court of Appeals.
 
When the case reached the Supreme Court, the award of the Labor Arbiter was reinstated.
 
The Court noted that the seafarer was under medical treatment with the company-designated physician for 126 days.  Thereafter, the seafarer, while diagnosed with an interim disability assessment of grade “10”, was also advised to further undergo bone scan.  However, instead of returning for the recommended diagnosis and treatment, the seafarer opted to secure the opinion of his chosen physician who, although arriving at a finding of permanent total disability, nonetheless required seafarer to subject himself to further bone scan and EMG-NCV to determine the exact problem on his lumbar spine.  Instead of heeding the recommendations of his own doctor, the seafarer went on to file a complaint for disability benefits. In point of law, seafarer's filing of the case was premature.
 
The doctors were one in recommending that seafarer undergo at least a bone scan to determine his current condition while undergoing treatment, thus indicating that seafarer's condition needed further attention. In this regard, it was correct to argue that seafarer abandoned his treatment, as under the law and the POEA contract of the parties, the company physician is given up to 240 days to treat him. On the other hand, the fact that seafarer’s chosen doctor required the conduct of further tests on the seafarer is an admission that his diagnosis of permanent total disability is incomplete and inconclusive, and thus unreliable. It can only corroborate the company-designated physician's finding that further tests and treatment are required.
 
Nevertheless, the Court held that seafarer might have treated the company-designated physician's grade “10” temporary diagnosis as the final assessment of his condition, which prompted him to secure the opinion of his own doctor and thereafter file the case prematurely.  For this he cannot be completely blamed as he might have proceeded under the impression that he was being shortchanged. Given his position in the employment relation, his distrust for the company is not completely unwarranted.  As such, seafarer is entitled only to compensation equivalent to or commensurate with his injury as determined by the Labor Arbiter.
 
C.F. Sharp Crew Management, Inc., its President, and Gulf Energy Maritime vs. Noel Orbeta, G.R. No. 211111, September 25, 2017, First Division, Associate Justice Mariano Del Castillo, ponente

 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
 
“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494
 
“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949
 
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