Monday, December 10, 2018, 9:39 p.m.
By Atty. Dennis R. Gorecho
The declaration for interim disability grade is merely an initial determination of a seafarer’s condition for the time being and cannot be considered as a definite prognosis.
Without a valid final and definitive assessment from the company-designated physician within the 120/240-day period, the law already steps in to consider a seafarer’s disability as total and permanent. Thus, a temporary total disability becomes total and permanent by operation of law.
The rules regarding the company-designated physician’s duty to issue a final medical assessment on the seafarer’s disability grading is summarized in the 2015 case of Elburg Shipmanagement Philippines, Inc. v. Quiogue, Jr., (765 Phil. 341) as follows:
- 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;
- If the company-designated fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
- If the company-designated physician fails to give his assessment within the 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
- 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.
Said doctrine was applied in the case of Oscar D. Gamboa vs. Maunlad Trans. Inc ( G.R. No. 232905, August 20, 2016) which involved a seafarer medically repatriated due to asthma and osteoarthritis.
The company-designated physician issued an “interim” assessment just 88 days from the seafarer’s repatriation declaring his disability to be “Grade 8 (orthopedic) – 2/3 loss of lifting power and Grade 12 – (pulmonary) slight residual or disorder.
The gradings were based on the findings that the seafarer’s asthma was “still not totally controlled,” while his back problem “still presents with tenderness and muscle spasm on the left paraspinal muscle.”
Being an interim disability grade, the declaration was merely an initial determination of seafarer’s condition for the time being and cannot be considered as a definite prognosis.
Notwithstanding the temporariness of his findings, the company-designated physician, however, failed to indicate the need for further treatment/rehabilitation or medication, and provide an estimated period of treatment to justify the extension of the 120-day treatment period.
In fact, while the seafarer had subsequent follow-up sessions, the company-designated physician still failed to arrive at a definitive assessment within the 120-day period or indicate the need for further medical treatment.
Evidently, without the required final medical assessment declaring the seafarer fit to resume work or the degree of his disability the characterization of the latter’s condition after the lapse of the 120-day period as total and permanent ensued in accordance with law, since the ability to return to one’s accustomed work before the applicable periods elapse cannot be shown.
The seafarer was declared by the Supreme Court to be entitled to permanent total disability benefits by operation of law.
(Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email firstname.lastname@example.org, or call 09175025808 or 09088665786)