Final and definite disability assessments on seafarer’s benefits

Final and definite disability assessments on seafarer’s benefits
ATTY. DENNIS R. GORECHO - | December 17,2019 https://cebudailynews.inquirer.net/275601/final-and-definite-disability-...

A final and definite disability assessment is necessary in order to truly reflect the true extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such.

Otherwise, the corresponding disability benefits awarded might not be commensurate with the prolonged effects of the injuries suffered.

This was the principle on seafarer’s disability benefits cases reiterated by the Supreme Court in the recent case of Jerry Talaugon vs. BSM Crew Services/ Schulte Shipmgt. ( GR. No. 227934 September 4, 2019)

The company employed the seafarer as an oiler.

The seafarer was medically repatriated after he was hospitalized in Saudi Arabia and was diagnosed with “Renal Colic Lumbago post Zoster Neuralgia.”

Upon his arrival in the Philippines, he was seen by a company designated doctor wherein he was diagnosed with “Hyperthesia, Ruled out Hansen’s Disease, L4- L5 Disc Protrusion, Disc Dessication” and later on with a tumor in his spinal cord.

After undergoing surgery and physical therapy, he went back to, yet, another company-designated doctor. The latter observed that he was still suffering lower back pain probably due to his lumbar spondylosis who then declared that his illness was not work related. Said doctor, nonetheless, offered to give him a disability grading of 11.

The company­ designated physician made an assessment on seafarer’s illness within the 120-day period, specifically a rating of Grade 11 on May 15, 2014 or 117th day since he was evaluated and had been undergoing continuous medical treatment.

The Supreme Court, however, did not consider said assessment as final and definite within the ambit of the existing jurisprudence.

Section 20(B) of POEA-SEC provides that it is the primary responsibility of a company-designated physician to determine the disability grading or fitness to work of seafarers.

To be conclusive, however, company-designated physicians’ medical assessments or reports must be complete and definite.

The guidelines that govern seafarers’ claims for permanent and total disability benefits was outlined in the case of Elhurg Shipmanagement Phils., Inc. v. Quiogue, Jr (G.R. No. 211882, July 29, 2015):

First, the company-designated doctor 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;

Second, if the company-designated doctor fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;

Third, if the company-designated doctor fails to give his assessment within the period of 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 has sufficient justification to extend the period; and

Lastly, if the company-designated doctor 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.

Two (2) requisites must concur for a determination of a seafarer’s condition: 1) an assessment must be issued within the 120/240 window, and 2) the assessment must be final and definitive.

The Medical Report dated May 15, 2014 contained the following observations: “the prognosis of returning to (his) sea duties is guarded” and “If patient is entitled to a disability, his suggested disability grading is Grade 11 – slight rigidity or 1/3 loss of motion of lifting power of the trunk.”

The Supreme Court pointed out that this is hardly the “definite and conclusive assessment of the seafarer’s disability or fitness to return to work” required by law from the company­ designated doctor.

For there was nothing on record showing that the company designated doctor explained in detail the progress of seafarer’s treatment and the approximate period needed for him to fully recover.

The assessment will not be considered definitive if the seafarer will continue to require medical treatments thereafter.

Consequently, without a final and definitive assessment from the company­ designated doctor on the seafarer’s disability, the Supreme Court stressed that the same is deemed permanent and total by operation of law.

In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity. Permanent total disability means disablement to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do. It does not mean absolute helplessness.