On 25 March 2015, the seafarer entered into an 8-month employment contract with SSA, PTE. LTD., through its agent, MSM, Inc. to work as a cabin stewardess in the vessel Viking Mimir. She boarded the vessel and commenced her work on 15 May 2015.
The seafarer alleged that on 17 July 2015, she assisted in the unloading of luggage of departing passengers and in retrieving boxes of mattresses and bedsheets from the laundry section to the state rooms. She then felt pain in her back while in the middle of replacing the mattresses. When the pain did not subside the following day, she went to see the ship’s doctor and was given pain relievers. She was allowed to continue her work, but the pain persisted and became unbearable after almost 2 weeks of continuous duty.
She further alleged that she was able to visit a hospital in Hungary on 23 July 2015, where she was diagnosed to have lower back pain and muscle strain. Despite having been prescribed pain relievers, her back pain worsened. She was able to have an X-ray and MRI on her back in Germany on 29 July 2015. There, she was suspected to have lumbar spine problem. She was prescribed with medicines to alleviate the pain and advised to have a thorough check-up.
As she was unable to receive further check up, her condition deteriorated and her mobility was seriously impaired after 2 months of heavy manual labor. Thus, when the vessel arrived in Austria on 21 September 2015, she was sent to a hospital. She was found to have serious back pain and was advised to be repatriated and undergo physiotherapy.
She was finally repatriated on 24 September 2015 and was able to visit the company-designated physician. She underwent various laboratory examinations the results of which revealed that she was suffering from back pain and Lumbago. She was advised to undergo physical therapy sessions and continue her medications.
She claimed that despite treatment and therapy, she was not able to recover from her back pain.
On 1 December 2015, the company-designated doctor cleared the seafarer from the cause of her repatriation despite her failure to recover, declared that her Lumbago was resolved, discontinued her treatment, and ignored her plea to continue medical treatment.
The seafarer stated that this constrained her to consult her personal doctor (an orthopedic specialist). Upon advice of said doctor, she underwent MRI on her thorax and lumbar spine on 4 February 2016 and was prescribed pain relievers. On 10 March 2016, her personal doctor issued a Certification declaring her “permanently UNFIT in any capacity to resume her sea duties as a Sea woman.”
Without observing the third doctor referral provision in the POEA-SEC, the seafarer filed a complaint for total and permanent disability benefits against her employer.
Was the seafarer entitled to payment of total permanent disability benefit despite her failure to observe the third-doctor referral provision in the POEA-SEC?
Yes.
The Supreme Court stated that the POEA-SEC provides for the procedure to be followed in case there is a divergence in medical findings between the company-designated physician and the seafarer’s personal doctor. Under Section 20 (A) (3) of the 2010 POEA-SEC, “[if] a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.” The provision refers to the declaration of fitness to work or the degree of disability. It presupposes that the company-designated physician came up with a valid, final and definite assessment as to the seafarer’s fitness or unfitness to work before the expiration of the 120-day or 240-day period. The company can insist on its disability rating even against a contrary opinion by another doctor, unless the seafarer signifies his intent to submit the dispute assessment to a third physician. The duty to secure the opinion of a third doctor belongs to the employee asking for disability benefits. He must actively or expressly request for it.1Hernandez v. Magsaysay Maritime Corp., G.R. No. 226103, January 24, 2018. This referral to a third doctor has been held to be a mandatory procedure2INC Shipmanagement, Inc. v. Rosales, G.R. No. 195832, October 1, 2014, 744 PHIL 774-790 and the seafarer’s non-compliance with the conflict-resolution procedure results in the affirmance of the fit-to-work certification of the company-designated physician.3Philippine Hammonia Ship Agency, Inc. v. Dumadag, G.R. No. 194362, June 26, 2013, 712 PHIL 507-524
The Court, however, stressed that non-compliance with the third doctor referral does not automatically make the diagnosis of the company-designated physician conclusive and binding on the courts. The Court has previously held that, “if the findings of the company-designated physician are clearly biased in favor of the employer, then courts may give greater weight to the findings of the seafarer’s personal physician. Clear bias on the part of the company-designated physician may be shown if there is no scientific relation between the diagnosis and the symptoms felt by the seafarer, or if the final assessment of the company-designated physician is not supported by the medical records of the seafarer.”4C.F. Sharp Crew Management, Inc. v. Castillo, G.R. No. 208215, April 19, 2017, 809 PHIL 180-206 A seafarer’s compliance with such procedure presupposes that the company-designated physician came up with an assessment as to his fitness or unfitness to work before the expiration of the 120-day or 240-day periods. Alternatively put, absent a certification from the company-designated physician, the seafarer has nothing to contest and the law steps in to conclusively characterize his disability as total and permanent.5Kestrel Shipping Co., Inc. v. Munar, G.R. No. 198501, January 30, 2013, 702 PHIL 717-738
In the present case, the Court found that the medical report of the company-designated physician failed to state a definite assessment of the seafarer’s fitness or unfitness to work, or to give a disability rating of her injury. According to the Court, the report lacked substantiation on the medical condition of the seafarer concerning her fitness to return to the type of work she was performing at the time of her injury. Furthermore, the report showed that the seafarer has not fully recovered from her injury as she “was advised to continue home exercises and that pain was foreseen to improve with time” and since she had to undergo “15 Physical Therapy Sessions.” The Court construed such statements as an admission from the company-designated physician that the pain experienced by the seafarer was still subsisting and that it was thru the passage of time that it was expected to improve.
On the other hand, the Court considered the medical report issued by the seafarer’s personal doctor, and found that this doctor gave an explanation on the nature, cause, effects, and possible treatment of the injury sustained by the seafarer. The Court pointed out that the medical report of the company-designated physician merely described the MRI of the Lumbosacral spine as “unremarkable,” while the report of the personal doctor on the MRI of the Thoraco-Lumbar Spine (Non-Contrast) conducted on the seafarer, contained the following impression: “L4-L5: Mild bilateral neural foraminal narrowing due to disc bulge; L5-S1: Mild bilateral neural foraminal narrowing due to disc bulge and facet hypertrophy; Facet arthrosis and ligamentum flavum hypertrophy; Mild lumbar curvature to the right may be positional versus mild lumbar dextroscoliosis; Small non-specific pelvic fluid; Small uterine myomas.” The Court found that consistent with the result of the said MRI, the seafarer’s personal doctor explained that:
“The significance of this posterior bulge of the degenerated disc is that this is the area where the nerves run that supply the extremities. This patient has been complaining of back pain. The vast majority of patients responded well to non-surgical treatment though. Probably the most important of which is time, that is to say, that no matter what is done, most cases of acute back and neck pain slowly resolve if given enough time to get better. x x x If a long term and more permanent result are desired however, she should refrain from activities producing torsional stress on the back and those that require repetitive bending and lifting. Things Ms. Briones is expected to do as a Sea woman.”
The Court, thus, viewed the assessment of the personal doctor as exhaustive and more reflective of the seafarer’s medical condition especially so since both medical reports acknowledged the passage of time as a key factor in resolving the back pain experienced by Briones.
The Court clarified that a total disability does not require that the employee be completely disabled, or totally paralyzed, for what is necessary is that the injury must be such that the employee cannot pursue his or her usual work and earn from it. It added that a total disability is considered permanent if it lasts continuously for more than 120 days, as what is crucial is whether the employee who suffers from disability could still perform his work notwithstanding the disability he incurred.6Talaroc v. Arpaphil Shipping Corp., G.R. No. 223731, August 30, 2017, 817 PHIL 598-618
Further reading:
- Multinational Ship Management, Inc. v. Briones, G.R. No. 239793, January 27, 2020.
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