Atty Dennis Gorecho: Osteoarthritis as a compensable seafarer’s illness; Interim disability grading in seafarer’s claims

Osteoarthritis as a compensable seafarer’s illness
Dennis Gorecho - November 15, 2018 https://www.panaynews.net/osteoarthritis-as-a-compensable-seafarers-illn...

DEGENERATIVE changes of the spine, also known as osteoarthritis, is considered work-related due to the seafarer’s performance of tasks that clearly involve undue heavy physical labor and joint strain.

The job of a seafarer is not exactly a walk in the park. He performs duties and responsibilities as instructed or as necessary. The job obviously entails laborious manual tasks conducted in a moving ship, which makes for increased work-related stress aside from exposure to fluctuating temperatures caused by weather changes.

The compensability of osteoarthritis was favorably ruled upon by the Supreme Court in the case of Oscar D. Gamboa vs Maunlad Trans Inc. (G.R. No. 232905, Aug. 20, 2016).

Seafarer Gamboa entered into a nine-month contract of employment as Bosun on board the vessel MV Oriente Shine, a cargo vessel transporting logs from Westminster, Canada to several Asian countries.

During the voyage, the seafarer slipped and lost his footing while going down the ship’s galley, which caused a writhing pain on the upper left side of his back. The ship master initially gave him Salonpas for his back.

Due to experienced back pain and difficulty in breathing, the captain was prompted to disembark him for medical consultation in Canada. While the foreign port doctor took note of the seafarer’s back pain, it was his diagnosed asthma that prompted the said doctor to declare him unfit for duty. The seafarer was medically repatriated.

Subsequent check-ups in the Philippines noted that the seafarer was suffering from “Degenerative Changes, Thoracolumbar Spine” and was found to have a “metallic foreign body on the anterior cervical area noted on x-ray.”

The company-designated physician opined this illness as not related to the cause of the seafarer’s repatriation.

The company denied liability for payment of the seafarer’s disability benefits. They alleged his osteoarthritis was declared to be not work-related by the specialist since it may have occurred overtime and could not have developed during his 22-day stay on board the vessel, hence, was a pre-existing condition.

The entitlement of a seafarer on overseas employment to disability benefits is governed by law, by the parties’ contracts, and by the medical findings.

The Philippine Overseas Employment Administration (POEA) contract governs the procedure for compensation and benefits for a work-related injury or illness suffered by a seafarer on board sea-going vessels during the term of his employment contract.

A “work-related” illness is defined as “any sickness as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied.

Osteoarthritis is associated with the breakdown of cartilage in joints and can occur in almost any joint in the body. It commonly occurs in the weight-bearing joints of the hips, knees and spine.

Osteoarthritis occurs when the cartilage that cushions the ends of bones in the joints gradually deteriorates. Cartilage is a firm, slippery tissue that permits nearly frictionless joint motion. The slick surface of the cartilage becomes rough. Eventually, if the cartilage wears down completely, one may be left with bone rubbing on bone.

There are conditions that should be met before an illness, such as osteoarthritis, can be considered as pre-existing, namely:

(a) the advice of a medical doctor on treatment was given for such continuing illness or condition; or

(b) the seafarer had been diagnosed and has knowledge of such illness or condition but failed to disclose the same during the PEME, and such cannot be diagnosed during the PEME. The Supreme Court ruled that none of these conditions had been established in this case.

The Court explained that osteoarthritis is a listed occupational disease if the occupation involves any of the following:

joint strain from carrying heavy loads, or unduly heavy physical labor, as among laborers and mechanics
minor or major injuries to the joint
excessive use or constant strenuous usage of a particular joint, as among sportsmen, particularly those who have engaged in the more active sports activities
extreme temperature changes (humidity, heat and cold exposures)
faulty work posture or use of vibratory tools

The seafarer, as Bosun of the principal’s cargo vessel that transported logs, undeniably performed tasks that clearly involved unduly heavy physical labor and joint strain.

The Court declared that the seafarer’s sustained back injury was not the result of an accident but nonetheless ordered the payment of his disability in accordance with the provisions of the Collective Bargaining Agreement (CBA.)

Dennis Gorecho - November 8, 2018 https://www.panaynews.net/interim-disability-grading-in-seafarers-claims/

THE DECLARATION for interim disability grade is merely an initial determination of a seafarer’s condition for the time being and cannot be considered as a definite prognosis.

Without a valid final and definitive assessment from the company-designated physician within the 120/240-day period, the law already steps in to consider a seafarer’s disability as total and permanent. Thus, a temporary total disability becomes total and permanent by operation of law.

The rules regarding the company-designated physician’s duty to issue a final medical assessment on the seafarer’s disability grading is summarized in the 2015 case of Elburg Shipmanagement Philippines, Inc. v. Quiogue, Jr., (765 Phil. 341) as follows:

The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him;
If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
If the company-designated physician fails to give his assessment within the 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician bas sufficient, justification to extend the period; and
If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.

Said doctrine was applied in the case of Oscar D. Gamboa vs Maunlad Trans. Inc. (G.R. No. 232905, Aug. 20, 2016) which involved a seafarer medically repatriated due to asthma and osteoarthritis.

The company-designated physician issued an “interim” assessment just 88 days from the seafarer’s repatriation declaring his disability to be “Grade 8” (orthopedic) – 2/3 loss of lifting power and Grade 12 – (pulmonary) slight residual or disorder.

The gradings were based on the findings that the seafarer’s asthma was “still not totally controlled” while his back problem “still presents with tenderness and muscle spasm on the left paraspinal muscle.”

Being an interim disability grade, the declaration was merely an initial determination of seafarer’s condition for the time being and cannot be considered as a definite prognosis.

Notwithstanding the temporariness of his findings, the company-designated physician, however, failed to indicate the need for further treatment/rehabilitation or medication, and provide an estimated period of treatment to justify the extension of the 120-day treatment period.

In fact, while the seafarer had subsequent follow-up sessions, the company-designated physician still failed to arrive at a definitive assessment within the 120-day period or indicate the need for further medical treatment.

Evidently, without the required final medical assessment declaring the seafarer fit to resume work or the degree of his disability the characterization of the latter’s condition after the lapse of the 120-day period as total and permanent ensued in accordance with law, since the ability to return to one’s accustomed work before the applicable periods elapse cannot be shown.

The seafarer was declared by the Supreme Court to be entitled to permanent total disability benefits by operation of law.