The 120/240 day rule on seafarer’s disability cases

12:36 am Tuesday, July 11, 2017

By: Atty. Dennis R. Gorecho

The number of days under medication is a significant element in determining the disability benefits of a seafarer who was a medically repatriated. The seafarer’s standard employment contract of the Philippine Overseas Employment Administration (POEA)    enumerates under Section 20(A) (3) the three classes of benefits the seafarers are entitled to if the illness or injury is considered as work connected:

  1. sickness allowance not to exceed 120 days of  basic wage;
  2. medical expenses until such time he is declared fit or the degree of his disability has been established by the company-designated physician; and
  3. compensation in accordance with the schedule of benefits governed by the rates and the rules of compensation.

In many instances, the period within which the company-designated physician issues a final medical assessment on the seafarer’s disability grading is a contentious factor in the determination of compensation due to the seafarer. The Supreme Court laid down (Elburg Shipmgt.  Phils vs. Ernesto Quiogue, G.R. No. 211882, July 29, 2015)     the following guidelines that shall govern seafarers’ claims for permanent and total disability benefits:

  1. The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him;
  2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
  3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
  4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.

Under the prevailing doctrine on disability claims of Filipino seafarers, when the company-designated physician makes an assessment of the seafarer’s disability rating within the period of 120 days from medical repatriation, such assessment becomes final. The additional 120 days (or a total of 240 days) from repatriation is given to the company-designated physician to provide further treatment to the seafarer and, “thereafter, make a declaration as to the nature of the latter’s disability.” Failure to obtain any gainful employment for more than 120 days after his medical repatriation, or inability to continue his work as a seaman for the same period does not mean that a seafarer’s disability should be considered permanent and total.

The Supreme Court further clarified that for the company-designated physician to avail of the extended 240-day period, he must first perform some significant act to justify an extension (e.g., that the illness still requires medical attendance beyond the initial 120 days but not to exceed 240 days); otherwise, the seafarer’s disability shall be conclusively presumed to be permanent and total. (Jebsens Maritime, v. Florvin Rapiz (G.R. No. 218871. January 11, 2017)

A seafarer is considered as suffering permanent total disability if the medical statement of the company doctor is devoid of any definitive declaration as to the seafarer’s capacity to return to work or at least a categorical and final degree of disability.

There is no “definitive assessment” where the company-designated physician noted that seafarer’s wound was still open and that he was to continue his medications (Carcedo v. Maine Marine Philippines, Inc G.R. No. 203804, April 15, 2015) If he fails to do so and the seafarer’s medical condition remains unresolved, the latter shall be deemed totally and permanently disabled. (Fil-Pride Shipping Company, Inc. v. Balasta,  G.R. No. 193047, March 3, 2014, 717 SCRA 624, 626)

Such principle is more apparent in event that the seafarer has remained unemployed as a seafarer for more than 240 days from the time of his repatriation or he was unable to perform the same physical activities he used to perform prior to his injury.  (Belchem Phils./UPL  vs. Eduardo  Zafra G.R. No. 204845, June 15, 2015) 

A total disability does not require that the employee be completely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue his or her usual work and earn from it.   (Fil-Star Maritime Corp., vs. Hanziel Rosete, G.R. No. 192686, November 23, 2011), Permanent disability is the inability of the worker to perform his job , regardless of whether or not he loses the use of any part of his body. (Philimare, Inc./Marlow Navigation Co., Ltd.,  vs. Benedicto Suganob, G.R. No. 168753, July 9, 2008)

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