ENTITLEMENT to disability benefits by seafarers is a matter governed not only by medical findings but also by law and by contract (OSG ShipMgt, vs De Jesus GR 207344, November 18, 2020).
By contract, the seafarers and their employers are governed not only by their mutual agreements but also by the provisions of the Standard Employment Contract (SEC), which are mandated to be integrated in every seafarer’s contract as well as the applicable Collective Bargaining Agreement (CBA).
The medical findings of the company-designated physician, the seafarer’s personal physician, and those of the mutually agreed third physician, pursuant to the POEA-SEC, will also be considered.
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 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 POEA contract does not preclude the seafarer from getting a second opinion as to his condition. The conflicting medical gradings will then be referred to a third doctor.
However, the provision on Determination of Disability Grading or Fitness to Work of the pending Magna Carta for Filipino Seafarers indicated that “the third doctor’s assessment shall strictly adhere to the Schedule of Disabilities as provided in the SEC or the applicable CBA, as warranted.”
Proponents have argued that disability shall not be measured by number of days of treatment but rather by the disability assessment issued by the doctor.
The 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 120/240 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 that 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 attainment 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 guidelines in Third Doctor referral was issued by the Supreme Court in the recent case of Bunayog v. Foscon Shipmgt, Inc. (G.R. No. 253480 April 25, 2023).
In reality, the grading system assessment under the POEA 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 (Grade 3), or loss of one foot at ankle joint or above (Grade 6), loss of 10 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.
“The Court stood as a mute witness to the paltry amounts received — even for permanent and total disabilities — compared with the illness Filipino seafarers have to suffer or the deaths that their families have to endure. Fairness and social justice demand that we give them all that they are due — as a Filipino seafarer who sacrificed and as a human being,” SC Justice Marvic Leonen said in Castillon vs Magsaysay Mitsui OSK (G.R. No. 234711. March 02, 2020).
***
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 0917-5025808 or 0908-8665786./PN
