BY DENNIS GORECHO
THE parameters for the third doctor consultation under the newly signed Magna Carta for Filipino Seafarers will lessen the chance of claimants to receive favorable decisions in compensation cases.
The provision on Determination of Disability Grading or Fitness to Work (Section 57) indicated that “the third doctor’s assessment shall strictly adhere to the Schedule of Disabilities as provided in the Standard Employment Contract (SEC) or the applicable Collective Bargaining Agreement (CBA), as warranted.”
Such provision is prejudicial to seafarers since the Supreme Court has ruled that entitlement to disability benefits is a matter governed, not only by medical findings and contract but also by law (OSG ShipMgt vs De Jesus G.R. No. 207344, November 18, 2020).
First, by contract, the seafarers and their employers are governed, not only by their mutual agreements, but also by the provisions of the SEC which are mandated to be integrated in every seafarer’s contract as well as the applicable CBA.
Second, the medical findings of the company-designated physician, the seafarer’s personal physician, and those of the mutually-agreed third physician, will also be considered.
Lastly, the Court stressed that by law, the material statutory provisions are Articles 197-199 (formerly Articles 191 to 193) under Chapter VI (Disability Benefits), Book IV of the Labor Code, in relation to Rule X of the Rules and Regulations Implementing Book IV of the Labor Code.
The Court noted that the medical assessment by company doctor “is not the alpha and the omega” (Elburg Shipmgt Phils. vs Quiogue, G.R. No. 211882, July 29, 2015 ) as the SEC does not preclude the seafarer from getting a second opinion as to his condition.
In reality, the grading system assessment under the SEC is not reflective of the benefits that should be given to the seafarer.
There are medical conditions that are classified as partial disability (between Grade 2 to 14) but in essence should have been considered as total permanent.
Employers will never hire a seafarer who suffered complete loss of the sense of hearing on both ears (Grade 3), loss of speech due to injury to the vocal cord (Grade 9), total loss of a leg or amputation at or above the knee (Grade 3), paralysis of one upper extremity (Grade3), or loss of one foot at ankle joint or above (Grade 6), loss of ten fingers of both hands (Grade 3) or amputation between wrist and elbow joint (Grade 5), or total blindness of one eye and 50 percent loss of vision of the other eye (Grade 5) will never be employed due to physical impairments.
Section 57 provision essentially is a limitation that is inconsistent with the Supreme Court‘s pronouncements that the law also governs their entitlement, specifically on the SC definition of total permanent disability and the 20/240 days rule.
In Bitco vs. Cross World Marine (G.R. No. 239190, February 10, 2021), the Supreme Court disregarded the partial disability grading issued by the company designated doctor as it noted that 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
Total disability means the incapacity of an employee to earn wages in the same or similar kind of work that he was trained for, or is accustomed to perform, or in any kind of work that a person of his mentality and attainments can do. It does not require total paralysis or complete helplessness
Permanent disability, on the other hand, is a worker’s inability to perform his or her job for more than 120 days, or 240 days if the seafarer required further medical attention justifying the extension of the temporary total disability period, regardless of whether or not he loses the use of any part of his body.
Permanent total disability means the inability to do substantially all material acts necessary to the prosecution of a gainful occupation without serious discomfort or pain and without material injury or danger to life.
In the Quiogue case, the Court discussed the 120/240 days in accordance with the Labor Code.
The company-designated doctor/physician carries the responsibility of making a definite and conclusive assessment on the degree of the seafarer’s disability and his capacity to resume work within 120 or 240 days from repatriation, as the case may be, and that failure to do so transforms the temporary total disability to permanent total disability, regardless of the disability grade.
The Supreme Court laid down the guidelines in Third Doctor referral in the recent case of Bunayog vs Foscon Shipmgt, Inc. (G.R. No. 253480 April 25, 2023).
Employers argued that disability shall not be measured by number of days of treatment but rather by the disability assessment issued by the doctor.
As the third doctor will limit his assessment to the SEC and CBA, he will more probably than not uphold the grading of the company doctor and will not consider the SC rulings on total permanent disability and the 20/240 days rule.
The inevitable consequence will be that such rule will be prejudicial to seafarers that will negate the main purpose of the enactment of the Magna Carta.
It will deviate from the translation into reality of the phrase “He who has less in life should have more in law” that has been popularized by the late Philippine president Ramon Magsaysay as far as the constitutional social justice principle is concerned.
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Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, e-mail info@sapalovelez.com, or call 09175025808 or 09088665786./PN
