Paulino Ungos III

Lawyer | Law Professor | Author

Tag: 2021-04

  • A Verbal Notice of the Seafarer’s Disability Rating Is Not Enough

    Gregorio was engaged under a 10-month employment contract by Panstar Shipping Co., Ltd. (Panstar), through its agent Abosta Shipmanagement Corporation (Abosta) to work as an oiler on board the M/V Sino Trader. He was deployed on March 20, 2016.

    On June 23, 2016, Gregorio and several crewmates were ordered to carry ship supplies and food provisions. While carrying a sack of rice, Gregorio claimed to have felt a sudden snap on his left lower back with a sharp pain radiating down to his thigh/leg. He immediately reported the incident to his superiors, and he was given pain relievers and a waist protector. Since his condition did not improve, he was brought to a medical center in Singapore where he was diagnosed with “Lumbar spondylosis with discopathy at L4-L5, L5-S1” and also prescribed medication. He was again brought to a hospital in Brazil because of persistent pain. On August 6, 2016, he was repatriated to the Philippines for further medical treatment.

    Upon arrival, Gregorio immediately reported to the company-designated physician on August 8, 2016. After running a series of laboratory tests on Gregorio, the company-designated physician diagnosed him with “Herniated Nucleus Pulposus L3-L4, Disc Protrusion L5-S1 and L-4 Radiculopathy,” and recommended that he undergo physical therapy. Gregorio claimed, however, that the employer ceased his treatment and rehabilitation on February 16, 2017.

    During a conference held on February 20, 2017, the employer informed Gregorio that he suffered from Grade 8 disability and offered him the corresponding disability benefits in the amount of US$16,795.00. Gregorio requested for further treatment or an improved monetary offer, but his requests were denied.

    On April 25, 2017, Gregorio consulted his personal doctor, an orthopedic surgeon, who diagnosed him with “Disc Protrusion L5-S1 & Radiculopathy” and declared him permanently unfit for sea duty in any capacity.

    Gregorio instituted a complaint for payment of total and permanent disability benefits against the employer. According to Gregorio, the company-designated physician failed to timely issue a final medical assessment. He emphasized that the employer was not able to present any final medical assessment even during the mandatory conferences before the Office of the Labor Arbiter.

    The employer contended that based on an alleged November 22, 2016 Medical Assessment issued by the company-designated physician, Gregorio only suffered from a Grade 8 disability. The employer posited that said November 22, 2016 Medical Assessment should prevail. Said employer also stressed that Gregorio failed to provide a copy of the medical assessment of his personal doctor of choice prior to his filing of complaint.

    In the meantime, the parties agreed to refer the conflicting medical findings to a third doctor. The appointed third doctor recommended Gregorio to undergo a Magnetic Resonance Imaging (MRI) scan and Electromyography (EMG) test. Despite the release of the MRI scan and EMG test results, the medical assessment of the third doctor was not secured. Gregorio claimed that the non-completion of the conflict-resolution procedure was due to the fault of the employer, which the latter denied.

    Is Gregorio entitled to total and permanent disability benefits?

    The Supreme Court ruled in the affirmative.

    The Court stated that claims for disability benefits for injuries suffered by seafarers on board or during the term of their employment contract are governed by the provisions of Section 20 (A) of the POEA Standard Employment Contract1SECTION 20. COMPENSATION AND BENEFITS. — A. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows: 1. The employer shall continue to pay the seafarer his wages during the time he is on board the vessel. 2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of his disability has been established by the company-designated physician. 3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days. For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. 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. xxx xxx xxx in that the seafarer has the obligation to report to the company-designated physician within three days from his repatriation, while the company-designated physician has the corresponding obligation to issue a final assessment of the seafarer’s disability within the periods mandated by law. The Court clarified that it is, however, not enough for the company-designated physician to issue a medical assessment within 120 or 240 days from the seafarer’s repatriation. In order to be binding, the medical assessment must be final, definite, and conclusive, otherwise, the law will step in and consider the seafarer totally and permanently disabled. Jurisprudence2Jebsens Maritime, Inc. v. Mirasol, G.R. No. 213874, June 19, 2019. has described a final, conclusive and definite medical assessment as that which must clearly state whether the seafarer is fit to work or the exact disability rating, or whether such illness is work-related, and without any further condition or treatment. It should no longer require any further action on the part of the company-designated physician and it is issued by the company-designated physician after he or she has exhausted all possible treatment options within the periods allowed by law. Jurisprudence3Gere v. Anglo-Eastern Crew Management Phils., Inc., G.R. Nos. 226656 & 226713, April 23, 2018. also teaches that apart from issuing a final, conclusive, and definite medical assessment, the company-designated physician and/or the company must also furnish the seafarer a copy thereof. To require the seafarer to seek the decision of a neutral third-party physician without primarily being informed of the assessment of the company-designated physician is a clear violation of the tenets of due process and is not countenanced.

    In the present case, the Court found that the company-designated physician failed to furnish Gregorio with a copy of the November 22, 2016 Medical Assessment within the periods mandated by law. The Court also found that Gregorio was informed of his Grade 8 disability rating only during the conference held on February 20, 2017 before the Office of the Labor Arbiter.

    The Court stressed that a verbal notice of the seafarer’s disability rating is not enough. The reason for furnishing the seafarer with a copy of the final medical assessment is to afford the seafarer the opportunity to evaluate the same and decide whether he agrees with it or not. Should the seafarer disagree with it, he ought to bring the same to an independent doctor who can only get a better understanding of the opinion of the company-designated physician through a copy of the latter’s medical assessment.

    In the present case, the Court stated that Gregorio cannot be expected to make an informed decision on the medical assessment of the company-designated physician based on a mere verbal declaration of his purported disability. Said the Court: Insofar as he is concerned, no final medical assessment was issued by the company-designated physician to contest. As such, Gregorio need not seek the opinion of an independent physician, more so refer the matter to a third doctor. Without proper notice of the November 22, 2016 Medical Assessment to Gregorio, he was already deemed totally and permanently disabled by operation of law, and therefore entitled to the corresponding disability benefits under the POEA Standard Employment Contract. The medical assessment of Gregorio’s personal doctor, as well as the absence of a medical assessment from a third doctor became immaterial.

    The Court added that the November 22, 2016 Medical Assessment, as an attachment to respondents’ Position Paper, was furnished Gregorio on September 8, 2017, or 396 days from his repatriation. For the Court, the final medical assessment of the company-designated physician was clearly not furnished to Gregorio within the 120 or 240-day periods mandated by law.

    The Court ordered the employer to pay total and permanent disability benefits to Gregorio.

    Further reading:

    • Abella v. Abosta Shipmanagement Corp., G.R. No. 249358, April 28, 2021.

  • A Blank Form with a Checklist

    The employee initially filed on 25 September 2014 a complaint against his employer via the Single-Entry Approach (SENA) before the Regional Conciliation and Mediation Board — NCR for illegal dismissal and non-payment of separation pay and labor standard law benefits (SENA Complaint). The SENA Complaint was, however, deemed closed and terminated because of the employee’s filing of a similar complaint before the National Labor Relations Commission (NLRC) against his employer for money claims (NLRC Complaint). Record shows that although the employee included a claim of separation pay in the causes of action in the NLRC Complaint, he failed to include therein a cause of action for illegal dismissal. The employee’s position paper still revealed that he specifically argued for the illegality of his dismissal from employment, as well as his entitlement to separation pay, among others.

    However, the labor tribunals and the Court of Appeals (CA) refused to resolve the issues on illegal dismissal and the money claims concomitant thereto, such as separation pay, damages, and attorney’s fees. Particularly, they ruled that since these money claims arose from a finding of illegal dismissal and the latter was not among the causes of action listed in the employee’s NLRC Complaint, they were precluded from passing on the issue of illegal dismissal, under Section 12, Rule V of the 2011 NLRC Rules of Procedure, as amended.

    Were the labor tribunals and the CA correct in not passing on the issue of illegal dismissal?

    The Supreme Court ruled that the labor tribunals and the CA were not correct. They should have addressed the issue of illegal dismissal.

    Section 12, Rule V of the 2011 NLRC Rules of Procedure, as amended, governs the rules on submission of position papers and replies before the NLRC. Such provision reads:

    SECTION 12. SUBMISSION OF POSITION PAPER AND REPLY. —

    (a) Subject to Sections 9 and 10 of this Rule, the Labor Arbiter shall direct the parties to submit simultaneously their verified position papers with supporting documents and affidavits on a date set by him/her within ten (10) calendar days from termination of the mandatory conciliation and mediation conference.

    (b) No amendment of the complaint or petition shall be allowed after the filing of the position papers, unless with leave of the Labor Arbiter.

    (c) The position papers of the parties shall cover only those claims and causes of action stated in the complaint or amended complaint, accompanied by all supporting documents, including the affidavits of witnesses, which shall take the place of their direct testimony, excluding those that may have been amicably settled.

    (d) Within ten (10) days from receipt of the position paper of the adverse party, a reply may be filed on a date agreed upon and during schedule set before the Labor Arbiter. The reply shall not allege and/or prove facts and any causes of action not referred to or included in the original or amended complaint or petition or raised in the position paper. (Emphases supplied)

    The Court stated that sub-paragraph (c) purportedly limits the coverage of the position papers of the parties to only those claims and causes of action stated in the complaint or amended complaint; whereas sub-paragraph (d) directs that the reply shall only allege and prove facts and causes of action in the original or amended complaint or in the position paper.

    The Court took judicial notice of the fact that initiatory complaints filed before the NLRC are just blank forms wherein the employee-complainant simply inputs his/her details, the respondent’s details, and ticks off a checklist of causes of action which are applicable to him/her. The Court stated that it is only upon the filing of position papers that the complainant is able to expound on the employer’s acts or omissions which constitute his/her causes of action against the latter.

    According to the Court, it is only reasonable to infer that notwithstanding the aforementioned provision, the complaint could not be the sole basis in determining the complainant’s causes of action given that it is in the position paper that the ultimate facts are presented and established by the submission of all relevant documents and affidavits to support the same and prove their respective causes of action. Otherwise stated, the filing of the position paper, and not the mere complaint, should be the operative act that forecloses the raising of matters constitutive of the employee-complainant’s cause of action.1Dee Jay’s Inn and Café v. Rañeses, G.R. No. 191823, October 5, 2016, 796 PHIL 574-596, citing Tegimenta Chemical Phils. and Garcia v. Buensalida, G.R. No. 176466, June 17, 2008, 577 PHIL 534-546

    The Court added that it is for this reason why sub-paragraph (d) of Section 12, Rule V of the 2011 NLRC Rules allows the replies to discuss matters not only covered by the complaint or amended complaint, but also those covered by the position papers. Such interpretation, the Court said, is in accord with the settled norm that “[i]n labor cases, rules of procedure should not be applied in a very rigid and technical sense,”2Loon v. Power Master, Inc., G.R. No. 189404, December 11, 2013, 723 PHIL 515-533 and that “labor officials should use all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, in the interest of due process.”3Claudia’s Kitchen, Inc. v. Tanguin, G.R. No. 221096, June 28, 2017, 811 PHIL 784-802

    In this case, the Court found that the employee initially filed a SENA Complaint which included, illegal dismissal and the concomitant claim of separation pay as his causes of action. His SENA Complaint was, however, deemed closed and terminated when he filed his NLRC Complaint — which, while including separation pay as among the causes of action indicated therein, did not include illegal dismissal. Nonetheless, the employee went ahead and presented arguments supporting his claim for illegal dismissal in his position paper. For the Court, the employee never intended to remove his cause of action for illegal dismissal when he essentially refiled his SENA Complaint as his NLRC Complaint. The Court accordingly resolved the issue of illegal dismissal.

    Further reading:

    • Burnea v. Security Trading Corp., G.R. No. 231038, April 26, 2021.