Thursday, April 27, 2017
By: Atty. Dennis R. Gorecho
In the event of the disagreement on the services of the third doctor, the seafarer has the right to institute a complaint for disability benefits directly before the National Labor Relations Commission (NLRC) or the National Conciliation and Mediation Board (NCMB).
This is the ruling of the Supreme Court in the recent case of Reynaldo Sunit vs. OSM (G.R. No. 2230, February 27, 2017). The language of the POEA-Standard Employment Contract (SEC) is clear in that both the seafarer and the employer must mutually agree to seek the opinion of a third doctor. In many instances, the NLRC/NCMB and appeal courts dismiss the compensation claims of seafarers for alleged “non-compliance” with the third doctor opinion rule.
During his employment, the seafarer fell from the vessel’s tank approximately 4.5 meters high and suffered a broken right femur. He was diagnosed to have suffered “Fractured, Right Femur; SIP Intramedullary Nailing, Right Femur.” The seafarer was repatriated on October 6, 2012. After undergoing medical treatment, the company-designated doctor issued with an interim Grade 10 disability on January 13, 2013. The seafarer was then issued with a final Grade 10 disability by the company-designated doctor the opinion of a second doctor, Dr. Garduce, who recommended a Grade 3 disability.
Both parties then consulted a third doctor to assess the seafarer’s degree of disability, who assessed seafarer with a Grade 9 partial disability on February 17, 2014, 499 days from his repatriation. In addition to the partial disability grading, Dr. Bathan likewise assessed the seafarer as unfit to work and recommend him to undergo further rehabilitation.
The parties do not dispute the seafarer’s injury was work-related and that he is entitled to disability compensation. The disagreement however, lies on the degree of disability and amount of benefits that petitioner is entitled.
A final and definite disability assessment is necessary in order to reflect the true extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such. Otherwise, the corresponding disability benefits awarded might not be commensurate with the prolonged effects of the injuries suffered.
The Supreme Court recapitulated the procedural requisites under the rules and established jurisprudence where the parties opt to resort to the opinion of a third doctor:
First, according to POEA-SEC and as established by Vergara, when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work shall be determined by the company designated physician.
Second, if the seafarer disagrees with the findings of the company doctor, then he has the right to engage the services of a doctor of his choice. If the second appointed by the seafarer disagrees with the findings of the company doctor, and the company likewise disagrees with the findings of the second doctor, then a third doctor may be agreed jointly between the employer and the seafarer, whose decision shall be final and binding on both of them.
It must be emphasized that the language of the POEA-SEC is clear in that both the seafarer and the employer must mutually agree to seek the opinion of a third doctor. In the event of disagreement on the services of the third doctor, the seafarer has the right to institute a complaint with the LA or NLRC.
Third, despite the binding effect of the third doctor’s assessment, a dissatisfied party may institute a complaint with the LA to contest the same on the ground of evident partiality, corruption of the third doctor, fraud, other undue means, lack of basis to support the assessment, or being contrary to law or settled jurisprudence.
Permanent disability is defined as the inability of a worker to perform his job for more than 120 days (or 240 days, as the case may be), regardless of whether or not he loses the use of any part of his body. Total disability, meanwhile, means the disablement of an employee to earn wages in the same work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.
As the seafarer was actually unable to work even after the expiration of the 240-day period and there was no final and conclusive disability assessment made by the third permanently and partially disabled. It should be stressed that a total disability does not require that the employee be completely disabled, or totally paralyzed. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.