Paulino Ungos III

Lawyer | Law Professor | Author

Tag: third doctor

  • Unfit to Work as a Seaman

    Feliciano was hired by a foreign employer, Barker Hill Enterprises (Barker Hill), through its agent, Pacific Ocean Manning, Inc. (Pacific Ocean Manning) to work as a fitter on board the vessel MT Tequila under a Philippine Overseas Employment Administration-Standard Employment Contract (POEA Standard Employment Contract) and a Collective Bargaining Agreement (CBA). Feliciano boarded the vessel on May 9, 2012.

    Feliciano alleged that in July 2012, he figured in an accident when he bumped his right knee on the step of the stairs while on board the ship. On October 25, 2012, Feliciano consulted the on-board doctor due to pain in his right knee. The on-board doctor diagnosed Feliciano with “Damage of the Meniscus of the Right Knee.” He was then referred to a doctor in Poland, who made the same diagnosis. On October 28, 2012 he was medically repatriated to the Philippines.

    Upon arrival in Manila, Feliciano reported to Pacific Ocean Manning’s office and was referred to the company-designated physician. On October 30, 2012, Feliciano was diagnosed with chondromalacia patella, right or patellofemoral syndrome. He was prescribed medications and advised to undergo physical rehabilitation. Feliciano had follow-up consultations on December 4, 2012, as well as January 9, February 8, and March 7, 2013.

    On March 27, 2013, Feliciano consulted his personal doctor, who issued a medical report which stated that Feliciano was unfit for sea duties as he was suffering from partial permanent disability with a disability rating of Grade 10.

    On April 11, 2013, Feliciano had a check-up with the company-designated physician, who issued an interim disability assessment also of Grade 10 and advised Feliciano to continue physiotherapy. Feliciano had another check-up on May 8, 2013, after which, Feliciano’s condition was declared by the company-designated physician to be work-related with a final disability rating of Grade 10. Feliciano had follow-up check-ups on June 10, July 19, and August 2, 2013. During the last consultation on August 2, 2013, the company-designated physician advised that Feliciano’s physiotherapy be stopped and for Feliciano to continue on a home exercise program.

    On October 2, 2013, Feliciano consulted a different personally-appointed doctor, who gave a disability rating of Grade 6.

    Thereafter, Feliciano filed a complaint before the Office of the Labor Arbiter for total and permanent disability compensation. During the preliminary conference, the parties agreed to refer Feliciano to a third and independent doctor, who diagnosed Feliciano with valgus knee 2º to moderate-severe degenerative osteoarthritis and declared him unfit to work as a seaman, with a disability rating of Grade 7.

    Should Feliciano be granted total and permanent disability compensation?

    The Supreme Court ruled that Feliciano is only entitled to partial permanent disability compensation of Grade 7.

    The Court cited the last paragraph of Section 20 (A) (3) of the POEA Standard Employment Contract providing for the mandatory conflict resolution procedure when the findings of the company-designated physician and the seafarer’s appointed physician are different. The provision states: “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.”

    In the present case, the Court found that the company-designated physician and Feliciano’s personal doctor were consistent in their diagnoses that Feliciano was suffering from partial permanent disability and that they differed only as to the disability rating. On the one hand, the company-designated physician issued a disability rating of Grade 10. On the other hand, Feliciano’s personal doctor gave a disability rating of Grade 6. The Court noted that in any event, the parties agreed to refer Feliciano’s condition to a third doctor in compliance with the mandatory conflict resolution procedure under the POEA Standard Employment Contract. Said doctor issued a medical report which rated Feliciano’s disability as Grade 7 which is a partial permanent disability under the POEA Standard Employment Contract.

    The Court explained that Section 32 of the POEA Standard Employment Contract provides a schedule of disability from Grade 1 to Grade 14 and only disabilities classified as Grade 1 are considered total and permanent disability. Disabilities with a rating from Grade 2 to Grade 14 are classified as partial permanent disability.

    The Court stressed that the third doctor’s medical report must be viewed and upheld in its entirety. Said medical report did not indicate that Feliciano was suffering from total and permanent disability. According to the Court, were it so, the third doctor would have rated Feliciano’s disability as Grade 1. The phrase “unfit to work as a seaman”, said the Court, should be understood in the context of the third doctor having also given a Grade 7 rating. Thus, the rational understanding of this phrase “unfit to work as a seaman” was that it merely indicated that Feliciano was suffering from a disability which rendered him physically incapable for sea duties. The report clearly did not declare that Feliciano was suffering from total and permanent disability but rather, that he was suffering only from Grade 7 partial permanent disability.

    Furthermore, the Court considered the company-designated physician’s medical report as a final and conclusive assessment of Feliciano’s condition because although treatment of Feliciano continued after he was found to be suffering from disability, the same did not automatically negate the finality of the third doctor’s diagnosis, since there may be illnesses, injuries, or other health conditions which require regular treatment, follow-up consultations, rehabilitation, and maintenance medication.

    Also, the Court stated that the fact that Feliciano had not been redeployed within 240 days from repatriation did not mean that his disability could be deemed total and permanent. This is because Section 20 (A) (6) of the POEA Standard Employment Contract expressly states that the disability shall be based exclusively on the disability ratings under Section 32 and shall not be measured or determined by the number of days a seafarer is under treatment or the number of days in which sickness allowance is paid.

    Finally, the Court no longer gave credence to Feliciano’s assertion of entitlement to total and permanent disability by operation of law in view of the claim that he was not furnished with a copy of the company-designated physician’s medical report. According to the Court, such was a novel allegation that was never raised before the labor tribunals. The Court reiterated the principle that points of law, theories, issues, and arguments not previously raised before the lower court or quasi-judicial tribunal cannot be raised for the first time on appeal or review. Parties are not permitted to belatedly raise new issues or arguments which had not been previously determined by the lower courts or tribunals. To allow parties to do so would be offensive to the tenets of fair play and due process.1Pioneer Insurance & Surety Corp. v. Tan, G.R. No. 239989, July 13, 2020.

    In sum, the Court upheld the final and binding medical report of the third doctor and affirmed the finding that Feliciano was suffering from a Grade 7 disability or partial permanent disability.

    Further reading:

    • Pacific Ocean Manning, Inc. v. Castillo, G.R. No. 230527, June 14, 2021.

  • An Assessment Reflective of the Seafarer’s Medical Condition

    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.

  • The Party Who Secures the Opinion of a Third Doctor

    Under the Philippine Overseas Employment Administration Standard Employment Contract, when the seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work should be determined by the company-designated physician.

    However, if the doctor appointed by the seafarer makes a finding contrary to that of the assessment of the company-designated physician, a third doctor might be agreed upon jointly by the employer and the seafarer, and the third doctor’s decision would be final and binding on both parties.

    The non-observance of the requirement to have the conflicting assessments determined by a third doctor would mean that the assessment of the company-designated physician prevails.

    The Supreme Court denied the seafarer’s claim for disability benefits in this case.

    According to the Court, the need for the third doctor’s evaluation of the seafarer arose after his personal doctor declared him unfit for seafaring duties. The seafarer could not initiate his claim for disability solely on the basis of the declaration of his personal doctor. He should have instead set in motion the process of submitting himself to assessment by the third doctor by first serving the notice of his intent to do so on the employer.

    The Court stressed that there was no other way to validate the claim of the seafarer but this. Without the notice of intent to refer the seafarer’s case to the third doctor, the employer could not itself initiate the referral.

    Unless the seafarer served the notice of his intent, he could not then validly insist on an assessment different from that made by the company-designated physician. This outcome, which accorded with the procedure expressly set in the Philippine Overseas Employment Administration Standard Employment Contract, was unavoidable for him.

    The employer could insist on the disability rating of its company-designated physician even against a contrary opinion by another doctor, unless the seafarer signified his intent to submit the disputed assessment to a third doctor. The duty to secure the opinion of a third doctor belonged to the employee asking for disability benefits. Said employee must actively or expressly request for it.

    Further reading:

    • Maersk-Filipinas Crewing, Inc. v. Alferos, G.R. No. 216795, April 1, 2019.

  • Seafarer’s Noncompliance with the Third Doctor Referral Procedure

    The seafarer entered into a 9-month employment contract with Veritas Maritime Corp. to work as a bosun on board the M/V Bangkok Highway, a vessel owned by TNCK Kline. He boarded the vessel on 15 October 2011.

    The seafarer claimed that while he was on official duty on 10 February 2012, thinner solution spilled over his face, neck, chest, and arm, which suffered third-degree burns. When the vessel reached the port in Korea, the seafarer was brought to Dr. Kim Sung Jin, who diagnosed him to have suffered about a 15% to 20% third-degree burn. Said doctor declared him unfit for work, and recommended that he be immediately hospitalized for special burn treatment.

    The seafarer arrived in the Philippines on 23 February 2012 and was placed under the care of the company-designated physician, who diagnosed him with contact dermatitis.

    On 25 May 2012, the company-designated physician declared him fit to go back to work.

    The seafarer thereafter consulted his personal doctor who declared that he is not yet well.

    On 27 July 2012, the seafarer filed a complaint against Veritas Maritime Corp., et al., for payment of permanent total disability benefits, moral and exemplary damages, and attorney’s fees.

    Question:

    Will the seafarer’s complaint prosper?

    Answer:

    No. The complaint should be dismissed.

    Section 20 (A) (2)1Relevant portion states: “2. x x x 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.” and (3)2Relevant portion states: “3. x x x 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.” of the Philippine Overseas Employment Administration Standard Employment Contract3Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships, POEA Memorandum Circular No. 010, Series of 2010. requires the company-designated physician to determine the seafarer’s fitness to work or degree of disability upon the seafarer’s medical repatriation. Nonetheless, the seafarer may dispute the company-designated physician’s report by seasonably consulting another doctor. If this doctor appointed by the seafarer disagrees with the assessment of the company-designated physician, 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. Jurisprudence4Escabusa v. Veritas Maritime Corp., G.R. No. 223732, January 16, 2019; Magsaysay Maritime Corp. et al. v. Verga, G.R. No. 221250, October 10, 2018; Calimlim v. Wallem Maritime Services, Inc., G.R. No. 220629, November 23, 2016; INC Navigation Co. Philippines, Inc., et al. v. Rosales, 744 Phil. 774 (2014); Phil. Hammonia Ship Agency, Inc., et al. v. Dumadag, 712 Phil. 507 (2013); Ayungo v. Beamko Shipmanagement Corp., et al., 728 Phil. 244 (2014); Santiago v. Pacbasin ShipManagement, Inc., et al., 686 Phil. 255 (2012); Andrada v. Agemar Manning Agency, Inc., et al., 698 Phil. 170 (2012); Masangcay v. Trans-Global Maritime Agency, Inc., et al., 590 Phil. 611 (2008); and Vergara v. Hammonia Maritime Services, Inc., et al., 588 Phil. 895 (2008). dictates that this referral to a third doctor is a mandatory procedure that must be strictly followed.

    In the present case, it was shown that on 25 May 2012, about 3 months from his repatriation, the company-designated physician declared the seafarer fit for work.

    Although the seafarer consulted his personal doctor (who apparently had an opinion contrary to that reached by the company-designated physician), there was no showing that at the time the complaint was filed, said seafarer had observed the third doctor referral procedure under the Philippine Overseas Employment Administration Standard Employment Contract.

    The seafarer’s noncompliance with the third doctor referral procedure constituted a breach of the Philippine Overseas Employment Administration Standard Employment Contract and thus rendered his complaint dismissible for being premature. Jurisprudence5Escabusa v. Veritas Maritime Corp., G.R. No. 223732, January 16, 2019;Calimlim v. Wallem Maritime Services, Inc., et al., 800 Phil. 830 (2016); Veritas Maritime Corp., et al. v. Gepanaga, Jr., 753 Phil. 308 (2015); Philman Marine Agency, Inc., et al. v. Cabanban, 715 Phil. 454 (2013); and Vergara v. Hammonia Maritime Services, Inc., et al., 588 Phil. 895 (2008). teaches that in such a situation, the company-designated physician’s findings should prevail.

    Further reading:

    • Escabusa v. Veritas Maritime Corp., G.R. No. 223732, January 16, 2019.

  • Starting the Third Doctor Referral Process

    Section 20 (A) (3) of the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships,1Philippine Overseas Employment Administration Memorandum Circular No. 10, Series of 2010 provides that [i]f 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.

    Who should initiate the third doctor referral process?

    In Placio v. Bahia Shipping Service, Inc.,2G.R. No. 241926, January 7, 2019 the Supreme Court ruled that the seafarer should initiate such process. The Court said:

    Petitioner “was bound to initiate the process of referring the findings to a third-party physician by informing his employer of the same, which is mandatory considering that the POEA-SEC is part and parcel of the employment contract between seafarers and their employers.”3Magsaysay Mitsui Osk Marine, Inc. v. Buenaventura, G.R. No. 195878, January 10, 2018. Due to petitioner’s failure to abide by the procedure, the Court of Appeals gave more weight to the findings of the company-designated physician and correctly dismissed the complaint.

    Further Reading:

    • Placio v. Bahia Shipping Service, Inc., G.R. No. 241926, January 7, 2019.