A seafarer’s legal battle for disability benefits for knee, leg or foot injuries

A seafarer’s legal battle for disability benefits for knee, leg or foot injuries
ATTY. DENNIS R. GORECHO - April 20,2021 - https://cebudailynews.inquirer.net/373754/a-seafarers-legal-battle-for-d...

Seafarers work in a hostile environment and no matter how many precautionary measures are taken, accidents are bound to happen resulting to injuries ranging from minor to the most gruesome types; some even leading to fatalities.

A knee, leg or foot injury can affect a seafarer’s life physically, financially and emotionally. These types of injuries are very painful as a seafarer may not be able to walk without assistance for many months while undergoing extensive physical therapy to help him recover to his pre-injury state.

Losing the use of one’s lower extremities can mean losing any ability to financially support oneself and his family since the injury can also prevent a seafarer from returning to work.

Seafarers can be injured while performing of daily work functions in a moving ship, due to slipping and falling down on deck, ladders, gangways and stairs, tripping over a hose or rope, getting caught in machines and equipment malfunctions.
Seafarer must present evidence

A seafarer must present evidence or report that he suffered the injury while working on board the vessel during the term of his contract. This is to give the company the basis for evaluating whether the personal injury in question can be recognized as an occupational injury or disease.

The Philippine Law Dictionary defines “accident” as that which happens by chance or fortuitously, without intention and design, and which is unexpected, unusual and unforeseen.

Under the POEA–contract, the employer is liable for a seafarer’s disability, resulting from a work–connected injury or illness, only after the degree of disability has been established by the company-designated physician within the 120/240 day period.

The seafarer may be declared fit to work or disabled either partially (Grade 2 to 14) or total permanent (Grade 1).

There are only three situations where the company doctor will issue a Grade 1 assessment under the POEA contract: (a) paralysis of both lower extremities; (b) loss of both feet at ankle joint or above; and (c) failure of fracture of both hips to unite.

The lowest assessment, or Grade 14, will be given to loss of a toe other than the big one and scar the size of a palm or larger left on an extremity.
Grading systen assessment

One contentious issue in disability cases is the grading system assessment under the POEA contract which is not really reflective of the benefits that should be given to the seafarer.

There are medical conditions that are classified as partial disability (between Grade 2 to 14) but in essence should have been considered as total permanent (Grade 1).

The list includes paralysis of one lower extremity (Grade 3); loss of ten (10) digits of both feet (Grade 5); loss of one foot at ankle joint or above (Grade 6); total loss of a leg or amputation at or above the knee (Grade 3); failure of fracture of a hip to unite (Grade 3); complete immobility of a knee joint in full extension (Grade 10) or in strong flexion ( Grade 7); complete immobility of a hip joint in flexion of the thigh (Grade 5 ) or in full extension of the thigh (Grade 9).

Employers will never hire a seafarer who have suffered from these medical conditions due to mobility issues.

Fit-To Work certifications are even given to seafarers who are still not cured or in essence can no longer be employed. The findings cannot be taken as “gospel truth” due to the proliferation of obviously biased company doctors. (Wallem vs. NLRC 318 SCRA 623)

From the business point of view, it will be risky for the employers to let the seafarer be re-employed since the harsh working environment might only aggravate his fragile condition and in the end expose the company to more serious insurance liabilities.
Disability related to earning capacity

Disability is intimately related to one’s earning capacity. The test to determine its gravity is the impairment or loss of one’s capacity to earn and not its mere medical significance. In disability compensation, it is not the injury per se which is compensated but the incapacity to work. (Seagull Maritime Corp., vs. Jaycee Dee 520 SCRA 109).

The Supreme Court consistently ruled that “disability need not render the seafarer absolutely helpless or feeble to be compensable; it means disablement of an employee 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.” (Valenzona vs. Fair Shipping Corp., 659 SCRA 642)

In the case of Alpha Ship Mgt. vs. Calo (G.R. No. 192034 January 13, 2014), the Supreme Court notes that while the seafarer was given an Impediment Grade 10 by his physician, he was nevertheless deemed unfit to work as seafarer in any capacity and not expected to land gainful employment given his medical background.