Friday, January 29, 2016

Disability benefits of seaman denied; conflict resolution rule not followed


“x x x .

The issue of whether the seafarer can legally demand and claim disability benefits from the employer/manning agency for an injury or illness suffered may be determined from the pertinent provisions of Section 20 (B) of the 2000 POEA-SEC68 which enumerates the duties of an employer to his employee who suffers a work-related injury or disease during the term of his employment,69 viz.:


x x x x


The liabilities of the employer when the seafarer suffers workrelated injury or illness during the term of his contract are as follows:

x x x x

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.

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 postemployment 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. (Emphases supplied)

x x x x

Pursuant to the afore-quoted provision, two (2) elements must concur for an injury or illness of a seafarer to be compensable: (a) the injury or illness must be work-related; and (b) that the work-related injury or illness must have existed during the term of the seafarer’s employment contract.70

In the present case, Hipe was made to continuously perform work aboard the vessel beyond his six-month contract without the benefit of a formal contract. Considering that any extension of his employment is discretionary on the part of respondents and that the latter offered no explanation why Hipe was not repatriated when his contract expired on June 5, 2008, the CA correctly ruled that he was still under the employ of respondents when he sustained an injury on June 22, 2008. Consequently, the injury suffered by Hipe was a work-related injury and his eventual repatriation on August 5, 2008, for which he was treated/rehabilitated can only be considered as a medical repatriation.

Nonetheless, Hipe was subsequently declared fit to work by the company-designated physician on October 9, 2008, or merely 65 days after his repatriation, thus negating the existence of any permanent disability for which compensability is sought. Said fit-to-work certification must stand for two (2) reasons:

First, while Hipe’s personal doctor disagreed with the above mentioned assessment, opining that "it would be impossible for him to work as seaman-plumber"71 and recommending a disability grade of five, records show, however, that such opinion was not supported by any diagnostic tests and/or procedures as would adequately refute the fit-to-work assessment, but merely relied on a review of Hipe’s medical history and his physical examination;72 and

Second, Hipe failed to comply with the procedure laid down under Section 20 (B) (3) of the 2000 POEA-SEC with regard to the joint appointment by the parties of a third doctor whose decision shall be final and binding on them in case the seafarer’s personal doctor disagrees with the company-designated physician’s fit-to-work assessment. In Philippine Hammonia Ship Agency, Inc. v. Dumadag73 (Philippine Hammonia), the Court held that the seafarer’s non-compliance with the said conflict resolution procedure results in the affirmance of the fit-to-work certification of the company-designated physician, viz.:74

The filing of the complaint constituted a breach of [the seafarer’s] contractual obligation to have the conflicting assessments of his disability referred to a third doctor for a binding opinion. x x x Thus, the complaint should have been dismissed, for without a binding third opinion, the fit-to-work certification of the company-designated physician stands x x x.

x x x x

Whatever his reasons might have been, [the seafarer’s] disregard of the conflict-resolution procedure under the POEA-SEC and the CBA cannot and should not be tolerated and allowed to stand, lest it encourage a similar defiance. x x x The third-doctor-referral provision of the POEA SEC, it appears to us, has been honored more in the breach than in the compliance. This is unfortunate considering that the provision is intended to settle disability claims voluntarily at the parties’level where the claims can be resolved more speedily than if they were brought to court. Given the circumstances under which [the seafarer] pursued his claim, especially the fact that he caused the non-referral to a third doctor, [the company doctor’s] fit-to-work certification must be upheld. In Santiago v. Pacbasin Ship Management, Inc., the Court declared: "[t]here was no agreement on a third doctor who shall examine him anew and whose finding shall be final and binding. x x x [T]his Court is left without choice but touphold the certification made by [the company doctor] with respect to [the seafarer’s] disability. (Emphases and underscoring supplied; citations omitted)

In light of the contrasting diagnoses of the company-designated physician and Hipe’s personal doctor, Hipe filed his complaint before the NLRC but prematurely did so without any regard to the conflict-resolution procedure under Section 20 (B) (3) of the 2000 POEA-SEC. Thus, consistent with Philippine Hammonia, the fit-to-work certification of the company designated physician ought to be upheld.

In fine, given that Hipe’s permanent disability was not established through substantial evidence for the reasons above-stated, the NLRC did not gravely abuse its discretion in dismissing the complaint for permanent disability benefits, thereby warranting the reversal of the CA’s contrary ruling. Verily, while the Court adheres tothe principle of liberality in favor of the seafarer in construing the POEA-SEC, when the evidence presented then negates compensability, the claim for disability benefits must necessarily fail,75 as in this case.

X x x.”