Paulino Ungos III

Lawyer | Law Professor | Author

Tag: concealment

  • Consequences of Deliberate Concealment

    Magno alleged that on November 13, 2014, he was hired by Goodwood Ship Management, Pte., Ltd., through its agent, Trans-Global Maritime Agency, Inc., as Oiler on board MT G.C. Fuzhou for a period of nine months. He stated that after he was declared fit for sea duty in his pre-employment medical examination, he boarded the vessel on November 15, 2014.

    Magno narrated that on January 25, 2015, he suddenly felt severe chest pain, accompanied by dizziness and weakness while carrying out his duties. He was made to endure his condition until his repatriation on May 18, 2015. Upon arrival in the Philippines, he was referred to the employer-company’s designated physician. From May 20, 2015, he was subjected to various tests and treatment for coronary artery disease. After five months of treatment, the company-designated physician discontinued his treatment. Consequently, he consulted his personal cardiologist, who concluded that the nature and extent of his illness rendered him permanently and totally unfit to work as a seaman. Thus, on January 19, 2016, he filed a complaint for disability benefits, medical expenses, damages and attorney’s fees against his employer.

    For its part, the employer retorted that Magno denied having a history of high blood pressure or any kind of heart disease when he ticked the “No” box opposite “High Blood Pressure” and “Heart Disease Vascular/Chest Pain” under the section, Medical History in his Pre-Employment Medical Examination (PEME). The employer stated that it was on May 17, 2015, that Magno complained of back and chest pains, with difficulty of breathing and easy fatigability, and was thereafter medically repatriated. During his treatment by the company-designated physician sometime in September 2015, Magno disclosed that he was diagnosed, as early as 2009, with coronary artery disease, for which he underwent Percutaneous Coronary Intervention of the left anterior descending artery. The company-designated physicians later stopped his treatment, prompting him to file a complaint for the payment of permanent total disability benefits.

    The Office of the Labor Arbiter ruled in favor of Magno and awarded him permanent total disability benefits. Said Office considered the company-designated physician’s continuation of Magno’s treatment despite his belated disclosure of his existing coronary artery disease as an instance of employer’s waiver of its right to deny liability for disability benefits. According to the Office of the Labor Arbiter, such treatment constituted an implied admission of compensability and work-relatedness of Magno’s lingering cardio-vascular illness. The Office of the Labor Arbiter further found that the company-designated physician failed to issue a final assessment of Magno’s illness or fitness to work, which failure deemed Magno totally and permanently disabled.

    On appeal, the National Labor Relations Commission affirmed the Office of the Labor Arbiter’s ruling because Magno’s illness occurred within the duration of his contract, and his treatment lasted for more than 120 days. For the Commission, the award of permanent total disability benefits was justified.

    The employer then filed a petition for certiorari with the Court of Appeals, which dismissed the petition.

    Thus, the employer sought recourse before the Supreme Court, alleging that the Court of Appeals committed serious errors of law in upholding the Commission’s Decision. The employer insisted that Magno was not entitled to permanent and total disability benefits and his other monetary claims because of deliberate concealment of his coronary artery disease.

    For his part, Magno maintained entitlement to permanent total disability benefits since his illness was work-related and had contributed to the development of his condition that resulted in his disability.

    Is Magno entitled to permanent total disability benefits?

    The Supreme Court ruled that Magno is not entitled to permanent total disability benefits. The Court of Appeals erred in upholding the decision of the National Labor Relations Commission.

    The Court started by stating that entitlement of seafarers on overseas work to disability benefits is a matter governed, not only by medical findings, but by law and by contract. The Court stated that the material statutory provisions are Articles 197 to 199 of the Labor Code of the Philippines in relation to Section 2 (a), Rule X of the Amended Rules on Employee Compensation. By contract, the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC), the parties’ collective bargaining agreement, if any, and the employment agreement between the seafarer and the employer are pertinent.

    The Court pointed out that Section 20, paragraph E of the POEA-SEC clearly provides that “[a] seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any compensation and benefits.” The Court said that such rule seeks to penalize seafarers who conceal information to pass the pre-employment medical examination. It even makes such concealment a just cause for termination.

    Under the POEA-SEC, there is a “pre-existing illness or condition” if prior to the processing of the POEA contract, any of the following is present:

    • the advice of a medical doctor on treatment was given for such continuing illness or condition; or
    • the seafarer has been diagnosed and has knowledge of such illness or condition but failed to disclose it during the pre-employment medical examination, and such cannot be diagnosed during such examination.

    In the present case the Court found that:

    • In his September 18, 2014 PEME, Magno indicated that he was not suffering from any medical condition likely to be aggravated by service at sea or which may render him unfit for sea service;
    • Magno also indicated in the PEME that he did not have a history of heart disease/vascular/chest pain, high blood pressure, or that he underwent treatment for any ailment and was taking any medication; and
    • He signed the PEME certificate acknowledging that he had read and understood and was informed of the contents of such certificate.

    However, the Court further found a medical report issued by the company-designated physician, dated September 17, 2015, which stated therein Magno’s disclosure of a history of coronary artery disease for which he underwent percutaneous coronary intervention of the left anterior descending artery in 2009.

    With this disclosure, the Court declared that Magno had obscured his pre-existing cardiac ailment, and such concealment thus disqualified him from disability benefits notwithstanding the medical attention extended by the company-designated physician upon his repatriation.

    The Court discussed that even if the misrepresentation was discovered during Magno’s treatment with the company-designated physician, the same was immaterial and could not have canceled out his deception.

    The Court reiterated that a PEME is generally not exploratory in nature, nor is it a totally in-depth and thorough examination of an applicant’s medical condition. It does not reveal the real state of health of an applicant, and does not allow the employer to discover any and all pre-existing medical condition with which the seafarer is suffering and for which he may be taking medication. The PEME is nothing more than a summary examination of the seafarer’s physiological condition and is just enough for the employer to determine his fitness for the nature of the work for which he is to be employed.

    Since the PEME is not exploratory, the Court emphasized that its failure to reveal or uncover Magno’s ailments cannot shield him from the consequences of his deliberate concealment. In this regard, the “fit to work” declaration in the PEME cannot be a conclusive proof to show that he was free from any ailment prior to his deployment.

    For knowingly concealing his history of coronary artery disease during the PEME, Magno committed fraudulent misrepresentation which unconditionally barred his right to receive any disability compensation from his employer.

    The Court added that even if it were to disregard Magno’s fraudulent misrepresentation, his claim would still fail.

    Coronary artery disease, which is subsumed under cardio-vascular disease, and hypertension are listed as occupational diseases under item 11, Section 32-A of the POEA-SEC.

    However, before such disease to be compensable, a seafarer must establish concurrence of the following conditions enumerated in the first paragraph of Section 32-A of the POEA-SEC:

    • The seafarer’s work must involve the risk described therein;
    • The disease was contracted as a result of the seafarer’s exposure to the described risks;
    • The disease was contracted within a period of exposure and under such other factors necessary to contract it; and
    • There was no notorious negligence on the part of the seafarer.

    Relevant thereto, the Court reiterated prevailing jurisprudence in that the table of illnesses and the corresponding nature of employment in Section 32-A only provides the list of occupational illnesses. However, even if the illness may be considered as work-related for having been specified in the table, the seafarer is still not exempted from providing proof of the conditions under the first paragraph of Section 32-A in order for the occupational illnesses complained of to be considered as compensable. Whoever claims entitlement to benefits provided by law should establish his right thereto by substantial evidence which is more than a mere scintilla; it is real and substantial, and not merely apparent. Further, while in compensation proceedings in particular, the test of proof is merely probability and not ultimate degree of certainty, the conclusion of the courts must still be based on real evidence and not just inference and speculations.

    In the present case, the Court found that Magno failed to present sufficient evidence to show how his working conditions contributed to or aggravated his illness. According to the Court, the general statements in his Position Paper were not validated by any written document or other proof. Neither was any expert medical opinion presented regarding the cause of his condition.

    The Court expounded that although Magno suffered from coronary artery disease, a cardiovascular illness under item 11 of Section 32-A of the POEA-SEC, the conditions for compensability under the same section were not present since Magno did not present any proof of the required conditions to demonstrate that his illness is work-related and, therefore, compensable. Specifically, Magno failed to discharge his burden to prove the risks involved in his work, that his illness was contracted as a result of his exposure to the risks within the period of exposure and under such other factors necessary to contract it, and that he was not notoriously negligent. The Court thus ruled that Magno was not entitled to permanent total disability benefits.

    In deciding against the seafarer in this case, the Court emphasized that the constitutional policy to provide full protection to labor is not meant to be a sword to oppress employers, as justice is for the deserving and must be dispensed within the light of established facts, the applicable law, and existing jurisprudence. The Court said that its commitment to the cause of labor is not a lopsided undertaking. The Court concluded by stating that such commitment cannot and does not prevent it from sustaining the employer when it is in the right.

    Further reading:

    • Trans-Global Maritime Agency, Inc. v. Utanes, G.R. No. 236498, September 16, 2020.

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  • Foreign Doctor Who Provided Urgent Care — a Company-Designated Physician?

    On 7 August 2015, the seafarer entered into a 9-month employment contract with Beks Gemi Isletmeciligi Ve Ticaret A.S. through its agent, Status Maritime Corporation, to work as a fitter.

    Before boarding the vessel, the seafarer underwent a pre-employment medical examination and was declared fit to work.

    On 25 March 2016, the seafarer’s shoulder snapped and was dislocated while he was allegedly lifting a heavy object. He was repatriated and recommended for surgical repair after being diagnosed with recurrent left shoulder dislocation.

    Immediately after repatriation, the seafarer reported to Status Maritime, which referred him to the company-designated physician. Although the company-designated physician initially recommended that the seafarer undergo an MRI, Status Maritime disapproved of the procedure and rejected the seafarer’s sickness allowance claim.

    The seafarer then consulted his personal doctor. After undergoing an MRI, the seafarer was diagnosed with “Rotator cuff tear (Supraspinatus), left shoulder.” Said personal doctor declared him permanently disabled and “unfit to work” as a seafarer.

    On 16 June 2016, the seafarer filed a complaint for permanent total disability benefits before the Office of the Labor Arbiter.

    The Office of the Labor Arbiter found that when the seafarer underwent pre-employment medical examination, he misrepresented that he was not suffering from any illness. However, when he was diagnosed abroad, he admitted to a certain Dr. Selvarajah that it was already his third time to sustain a left shoulder dislocation and that two episodes occurred before he boarded the vessel.

    The Office of the Labor Arbiter added that even if the seafarer did not conceal his medical history, he still could not claim disability benefits because his injury was not work-related. While his condition manifested onboard, the seafarer failed to show the connection of his injury to the nature of his work as a fitter. For his failure to present substantial evidence that his work condition caused or aggravated his injury, the seafarer was accordingly denied his claim for disability benefits.

    When the case reached the Supreme Court, the seafarer asserted the following:

    • No diagnosis was made by a company-designated physician. Dr. Selvarajah, a foreign doctor, was not a company-designated physician and, therefore, not qualified to make conclusive findings. The failure of a company-designated physician to give a definite medical finding after the period set under the POEA Standard Employment Contract renders his disability permanent and total.
    • He did not willfully conceal his medical condition during his pre-employment medical examination. He merely forgot to disclose his medical history and, being a layman without medical background, thought there was no need to disclose this information.
    • There was a presumption of fitness which was uncontroverted by evidence.
    • His medical condition should have been detected during the pre-employment medical examination because it was an apparent and external injury. Status Maritime was estopped because it had all the opportunity to screen him for the injury.

    Did Status Maritime comply with its obligation to refer the seafarer to a company-designated physician?

    The requirement of a post-employment medical examination can be gleaned in the provisions of Section 20 (A) of the POEA Standard Employment Contract.1SECTION 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 ship;

    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) In addition to the above obligation of the employer to provide medical attention, the seafarer shall also receive sickness allowance from his employer in an amount equivalent to his basic wage computed from the time he signed off until he is declared fit to work or the degree of disability has been assessed by the company-designated physician. The period within which the seafarer shall be entitled to his sickness allowance shall not exceed 120 days. Payment of the sickness allowance shall be made on a regular basis, but not less than once a month.

    The seafarer shall be entitled to reimbursement of the cost of medicines prescribed by the company-designated physician. In case treatment of the seafarer is on an out-patient basis as determined by the company-designated physician, the company shall approve the appropriate mode of transportation and accommodation. The reasonable cost of actual traveling expenses and/or accommodation shall be paid subject to liquidation and submission of official receipts and/or proof of expenses.

    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. In the course of the treatment, the seafarer shall also report regularly to the company-designated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer. 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.

    4) Those illnesses not listed in Section 32 of this Contract are disputably presumed as work-related.

    Jurisprudence teaches that the conduct of the post-employment medical examination is a reciprocal obligation shared by the seafarer and the employer. The seafarer is obliged to submit to an examination within 3 working days from his or her arrival, and the employer is correspondingly obliged to conduct a meaningful and timely examination of the seafarer.2Ebuenga v. Southfield Agencies, Inc., G.R. No. 208396, March 14, 2018.

    This post-employment medical examination is primarily conducted by the company-designated physician.3Orient Hope Agencies, Inc. v. Jara, G.R. No. 204307 , June 6, 2018. However, to be reliable, the assessment or findings of the company-designated physician must be “complete and definite to give the proper disability benefits to seafarers.” When the employer refuses to comply with its obligation to have the seafarer examined, the seafarer may rely on the medical findings of his or her chosen doctor.4Ebuenga v. Southfield Agencies, Inc., G.R. No. 208396, March 14, 2018. Between a non-existent medical assessment of a company-designated physician and the medical assessment of the seafarer’s doctor of choice, the latter evidently stands.5Dionio v. ND Shipping Agency and Allied Services, Inc., G.R. No. 231096, August 15, 2018.

    In the present case, the Supreme Court found that the seafarer went to Status Maritime immediately after arriving in the Philippines. However, when he requested a medical diagnosis of his condition, Status Maritime refused to subject him to a post-employment medical examination. This compelled the seafarer to go to a doctor of his choice. As noted above, this personal doctor declared him permanently disabled and “unfit to work” as a seafarer.

    On the other hand, the Court ruled that Dr. Selvarajah’s diagnosis could not be considered as that rendered by a company-designated physician. This is because a strict reading of the POEA Standard Employment Contract requires that the company-designated physician be the one to diagnose the seafarer upon repatriation.

    The Court further stated that even if the rules were to be applied liberally, the assessment of Dr. Selvarajah could not be considered thorough, final, and definitive, as it was merely for the seafarer’s urgent medical care. In Dr. Selvarajah’s medical report, there was no showing that he conducted tests to arrive at a proper diagnosis. In fact, he even recommended for the seafarer to undergo further tests to determine the extent of the injury. Furthermore, Dr. Selverajah’s report explicitly stated that it was not meant for any medicolegal proceedings, that it should not be used as a reference in any court hearing and that it does not support any compensation claim. The provisional nature of Dr. Selvarajah’s diagnosis was further supported by his act of recommending that the seafarer see an orthopedic surgeon for further assessment.

    The Court thus ruled that when there is no post-employment medical examination by a company-designated physician, the evaluation of the seafarer’s personal doctor is considered by law as binding between the parties. The refusal of Status Maritime to submit the seafarer to a medical examination was a contravention of its responsibility under the POEA Standard Employment Contract. Thus, the Court upheld the permanent disability rating of the seafarer’s personal doctor.

    Was the seafarer qualified to claim disability benefits?

    Despite the conclusion of his personal doctor, the Supreme Court declared that the seafarer was disqualified from claiming disability benefits on the ground of fraudulent concealment.

    Section 20 (E) of the POEA Standard Employment Contract states that “[a] seafarer who knowingly conceals a pre-existing illness or condition” is disqualified from claiming compensation and benefits.6The provision reads:

    SECTION 20. Compensation and Benefits. — x x x

    E. A seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any compensation and benefits. This is likewise a just cause for termination of employment and imposition of appropriate administrative sanctions. (Emphasis supplied)

    In the present case, the Court found that the seafarer knowingly concealed his history of shoulder dislocation. According to the Court, the seafarer had two instances of left shoulder dislocation prior to his employment — once in June 2015 and another in July 2015. Knowing that he had this recurring condition, the seafarer should have disclosed this fact during his pre-employment medical examination. This non-disclosure was apparent in his medical certificate, wherein he answered “no” to the question “Is applicant suffering from any medical condition likely to be aggravated by service at sea or to render the seafarer unfit for service. . .?”

    The Court further stated that the seafarer could not bank on the fact that he was cleared during the pre-employment medical examination. Jurisprudence dictates that this examination is not exploratory in nature and employers are not burdened to discover any and all pre-existing medical condition of the seafarer during its conduct. Pre-employment medical examinations are only summary examinations. They only determine whether seafarers are fit to work and does not reflect a comprehensive, in-depth description of the health of an applicant. This is precisely why Section 20 (E) mandates the seafarer to disclose his or her medical history during the pre-employment medical examination.7Status Maritime Corp. v. Spouses Delalamon, G.R. No. 198097, July 30, 2014, 740 PHIL 175-200; Philman Marine Agency, Inc. v. Cabanban, G.R. No. 186509, July 29, 2013, 715 PHIL 454-483

    According to the Court, intentional concealment of a pre-existing illness or injury is a ground for disqualification for compensation and benefits under the POEA Standard Employment Contract. While the laws give ample protection to our seafarers, this protection does not condone fraud and dishonesty.

    In the present case, the seafarer could not feign ignorance and downplay the concealment of his medical condition. The seafarer knew that he had a recurring shoulder dislocation and never denied this fact. Hence, his disability claim was not granted.

    Further reading:

    • Clemente v. Status Maritime Corp., G.R. No. 238933, July 1, 2020.

  • Concealment of Previous “Phlectenille, Right Eye”

    The seafarer was found to have concealed his previous illness: phlectenille, right eye. Nonetheless, this did not bar his disability claim for his present lower back injury.

    In TCM Tsakos Maritime Philippines, Inc.,1G.R. No. 241102, January 7, 2019. the Court ruled:

    [The seafarer’s] concealment of his previous illness and repatriation, as well as his receipt of corresponding disability benefits therefor, cannot bar his present claim because his previous illness, phlectenille, right eye, was not shown to be related in any way to his present illness of lower back injury.2Emphasis supplied.

    This Court had indeed disallowed the payment of disability benefits to seafarers in the past due to concealment or fraudulent misrepresentation. However, a review of these cases reveals that the prior injury or illness concealed by the seafarer was shown to be related to the injury or illness which was the subject of the seafarer’s pending claim.

    Further Reading:

    • TCM Tsakos Maritime Philippines, Inc. v. Calimpong, G.R. No. 241102, January 7, 2019.