Non-deployment as basis for total and permanent disability benefits

Non-deployment as basis for total and permanent disability benefits
Dennis Gorecho - October 13, 2022 https://www.panaynews.net/non-deployment-as-basis-for-total-and-permanen...

A SEAFARER who was no longer deployed back to work may be entitled to total and permanent disability benefits due to an illness he suffered while on board the vessel.

This was the ruling of the Supreme Court in the case of CF Sharp Crew Mgt. vs Daganato (G.R. No. 243399, July 6, 2022) involving an injured seafarer who was hired as Chief Cook.

While carrying a heavy provision of food, the seafarer suddenly slipped and fell, causing mild to moderate pain on his lower back area. The pain persisted and his condition worsened until he was medically repatriated.

After surgery and therapy, he was assessed by the company-designated physician with partial disability of Grade 11 (slight rigidity or 1/3 loss of lifting power of the trunk).

He then consulted a personal doctor who issued a medical certificate stating that he is permanently unfit in any capacity to resume his sea duties as a seafarer. He claimed disability benefits under the Collective Bargaining Agreement (CBA).

Under Supreme Court rulings, the company-designated physician is required to issue a final and definitive disability assessment within 120 or 240 days from the date of the seafarer’s repatriation.

The extended period of 240 days must be justified, and it is the employer’s burden to prove the need for such extension.

Failure to issue such assessment within 120 or 240 days, as the case may be, will render the disability of the seafarer as permanent and total.

The 120 or 240-day period shall be reckoned from the date of the seafarer’s repatriation for medical treatment, even in cases where the date of repatriation does not coincide with the date of his first consultation with the company-designated physician.

The company-designated physician in the instant case was able to issue a Certification only after 157 days reckoned from the time the seafarer was medically repatriated, without any assessment or indication as to his capacity to resume to work, or any justification to extend the 120-day period.

The Court ruled that the seafarer’s disability has become total and permanent upon failure by the company-designated physician to issue a final and determinative assessment within the 120-day period required under the rules.

On the other hand, the seafarer’s medical report certifies that he is permanently disabled to resume his work as a seafarer.

Prior to his deployment, the seafarer was declared fit to work and was not suffering from any physical anomalies that would render him unfit for seafaring activities.

The Court said it is safe to assume that the seafarer would not have been allowed to commence his work, specifically for the Chief Cook position, which is a physically demanding job, if he was unfit for employment.

Jurisprudence dictates that permanent total disability means “disablement of an employee to earn wages in the same kind of work or work of a similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment can do.”

Due to his injuries, the Supreme Court ruled that the seafarer can no longer resume his seafaring activities or work as a chief cook as it requires him to be in excellent physical condition.

The Court stressed that the seafarer’s total and permanent disability is bolstered by the fact that he was no longer deployed back to work and can no longer earn based on the job for which he was customarily trained to do.

The Supreme Court further ruled that the seafarer is entitled to a higher amount under the CBA as he has suffered from an accident.

The Court stressed that that it was incumbent upon the employer to prove that there was no accident given they are in possession of accident reports. They, however, failed to do so.

In Crystal Shipping, Inc. vs Natividad (G.R. No. 154798, Oct. 20, 2005), the Supreme Court granted disability benefits based on the information that as a result of his illness, the seafarer was unable to work as a chief mate for almost three years.

The company physician is mandated to justify the assessment using the medical findings he had gathered during his treatment of the seafarer.

The company physician’s assessment must be complete and definite for the purpose of ascertaining the degree of the seafarer’s disability benefits.

The assessment must truly reflect the extent of the sickness or injuries of the seafarer and his capacity to resume work as such.