Guidelines on the third doctor referral on seafarer’s disability benefit claims

Guidelines on the third doctor referral on seafarer’s disability benefit claims
Atty. Dennis Gorecho April 11, 2024 https://businessmirror.com.ph/2024/04/11/guidelines-on-the-third-doctor-...

The Supreme Court laid down in Bunayog v. Foscon Shipmgt, Inc. (G.R. No. 253480. April 25, 2023) guidelines to govern disability benefit claims where the seafarer requests for a third doctor referral.

1. A seafarer who receives a contrary medical finding from his/her doctor must send to the employer, within a reasonable period, a written request to refer the conflicting medical findings to a third doctor, to be mutually agreed upon by the parties, and whose findings shall be final and binding between the parties.

2. The written request must be accompanied by or must indicate the contents of the medical report from his/her doctor. Otherwise, the written request shall be considered invalid and as if none had been requested.

3. In case there was no valid request for a third doctor referral from the seafarer, the employer may opt to ignore the request or to refuse to assent, either verbal or written, to such request without violating the pertinent provision of the Philippine Overseas Employment Administration—Standard Employment Contract (POEA-SEC).

Accordingly, if a complaint is subsequently filed by the seafarer against the employer before the labor tribunal, and the parties, after a directive from the LA, fail to secure the services of a third doctor, the labor tribunal shall hold the findings of the company-designated physician final and binding, unless the same is found to be biased, i.e., lacking in scientific basis or unsupported by the medical records of the seafarer. In such a case, the inherent merits of the respective medical findings shall be considered by the tribunal or court.

If, however, the parties were able to secure the services of a third doctor during mandatory conference, the latter’s assessment of the seafarer’s medical condition should be considered final and binding.

4. In case of a valid written request from the seafarer for a third doctor referral, the employer must, within 10 days from receipt, send a written reply stating that the procedure shall be initiated by the employer. After a positive response from the employer, the parties are given a period of 15 days to secure the services of a third doctor and an additional period of 30 days for the third doctor to submit his/her assessment. The assessment of the third doctor shall be final and binding.

In case, however, the parties fail to mutually agree as to the third doctor, a complaint for disability benefits may be filed by the seafarer against the employer. The labor tribunal shall then consider and peruse the inherent merits of the respective medical findings of the parties’ doctors before making a conclusion as to the condition of the seafarer.

5. If, however, the employer ignores the written request of the seafarer, or sends a written reply to the seafarer refusing to initiate the referral to a third doctor procedure, or sends a written reply giving its assent to the request beyond 10 days from receipt of the written request of the seafarer, the employer is considered in violation of the POEA-SEC. The seafarer may now institute a complaint against his or her employer.

6. Upon the filing of the complaint and during the mandatory conference, the LA shall give the parties a period of 15 days to secure the services of a third doctor and an additional period of 30 days for the third doctor to submit his/her reassessment.

7. If the services of a third doctor were not secured on account of the employer’s refusal to give heed to the LA’s request or due to the failure of the parties to mutually agree as to the third doctor, the labor tribunal should make conclusive between the parties the findings of the seafarer’s physician of choice, unless the same is clearly biased, i.e., lacking in scientific basis or unsupported by the medical records of the seafarer. In such a case, the inherent merits of the respective medical findings and the totality of evidence shall be considered by the labor tribunal or court.

If, however, the failure to refer the seafarer’s condition to a third doctor after directive from the LA was due to the fault of the seafarer, then the labor tribunal and the court should make conclusive between the parties the findings of the company-designated physician, except when the company-designated physician’s medical conclusion is found to have been issued with a clear bias in favor of the employer, i.e., lacking in scientific basis, or unsupported by the medical records of the seafarer. When such exception applies, the inherent merits of the respective medical findings shall be considered by the tribunal or court.

8. If, despite the employer’s failure to respond to the seafarer’s valid request for a third doctor, the parties, during mandatory conference, were able to secure the services of a third doctor, and the latter was able to make a reassessment on the seafarer’s condition, the third doctor’s findings should be final and binding between the parties. In such a case, the employer’s refusal to respond to the seafarer’s valid request for a third doctor referral should be considered immaterial.