Seafarer who claims disability must undergo medical examination. Fitness of a seafarer for work should be determined by the company physician within the 120-day period, which is extended to 240-day period. This cannot be pre-empted by the worker by consulting another physician of his choice.
Respondent Marine Agency Phils., Inc. (Rickmers ), on behalf of its foreign principal, Global Management Limited, hired petitioner Noriel Montierro as Ordinary Seaman with a basic monthly salary of USD420. He was assigned to work on board the vessel MIV CSAV Maresias.
Sometime in May 2010, while on board the vessel and going down from a crane ladder, Montierro lost his balance and twisted his legs, thus injuring his right knee. Thereafter, he was examined in Livorno, Spain by Dr. Roberto Santini, who recommended surgical treatment at home and found him unfit for duty.
Thus, on 2 June 2010, Montierro was repatriated to the Philippines for further medical treatment. Two days after his repatriation, Montierro reported to Dr. Natalio G. Alegre II, the company-designated physician. He underwent a magnetic resonance imaging (MRI) scan of his right knee.
The MRI showed he had “meniscal tear, posterior horn of the medical meniscus, and minimal joint fluid.” Upon the recommendation of Dr. Alegre, Montiero underwent arthroscopic partial medical meniscectomy of his right knee at St. Luke’s Medical Center.
On 20 August 2010, Montierro had his second check-up with Dr. Alegre, who noted that the former’s surgical wounds had healed, but that there was still pain and limitation of motion on his right knee on gaits and squats. The doctor advised him to undergo rehabilitation medicine and continue physical therapy.
On 3 September 2010, the 91st day of Montierro’s treatment, Dr. Alegre issued an interim disability grade of 10 for “stretching leg of ligaments of a knee resulting in instability of the joint.” He advised Montierro to continue with the latter’s physical therapy and oral medications. Montierro further underwent sessions of treatment and evaluation.
On 3 January 2011, the 213th day of Montierro’s treatment, Dr. Alegre issued a final assessment of grade 10 disability.
Meanwhile, one month before Dr. Alegre’s issuance of the final disability grading, Montierro filed with the labor arbiter a complaint for recovery of permanent disability compensation in the amount of USD89,000, USD2,100 as sickness allowance, plus moral and exemplary damages and attorney’s fees. To support his claim for total permanent disability benefits, Montierro relied on a Medical Certificate dated 3 December 2010 issued by his physician of choice, Dr. Manuel C. Jacinto, recommending total permanent disability grading.
The LA held that Montierro was entitled to permanent total disability benefits under the Philippine Overseas Employment Agency Standard Employment Contract (POEA-SEC).
The LA relied on the 120-day rule introduced by the 2005 case Crystal Shipping, Inc. v. Natividad. The rule equates the inability of the seafarer to perform work for more than 120 days to permanent total disability, which entitles a seafarer to full disability benefits.
The LA also awarded one-month sickness allowance and attorney’s fees. On 26 October 2011, Rickmers elevated the case to the National Labor Relations Commission (NLRC)
The NLRC affirmed the Decision of the LA. Rickmers filed a Motion for Reconsideration, which the NLRC denied.
This denial prompted Rickmers to file a Rule 65 Petition with the CA.
The CA rendered a Decision partially granting the Petition. It affirmed the NLRC ruling insofar as the latter awarded Montierro one-month sickness allowance. The CA held, however, that he was entitled merely to “Grade 10” permanent partial disability benefits.
It also dropped the award of attorney’s fees granted to him earlier. In its Decision downgrading the claim of Montierro to “Grade 10” permanent partial disability benefits only, the CA ruled that his disability could not be deemed total and permanent under the 240-day rule established by the 2008 case Vergara v. Hammonia Maritime Services, Inc. Vergara extends the period to 240 days when, within the first 120-day period (reckoned from the first day of treatment), a final assessment cannot be made because the seafarer requires further medical attention, provided a declaration has been made to this effect.
The CA pointed out that only 215 days had lapsed from the time of Montierro’s medical repatriation on 2 June 2010 until 3 January 2011, when the company-designated physician issued a “Grade 10” final disability assessment. It justified the extension of the period to 240 days on the ground that Dr. Alegre issued an interim disability grade of “10” on 3 September 2010, the 91st day of Montierro’s treatment, which was within the initial 120-day period.
The CA upheld the jurisprudential rule that, in case of conflict, it is the recommendation issued by the company-designated physician that prevails over the recommendation of the claimant’s physician of choice.
Thus, the petition for review.
Whether the 120-day rule or the 240-day rule applies in this case
Whether or not the medical findings of a physician chosen by employee within the 120-day period is more binding than the company’s physician’s findings
Based on Kestrel Shipping Co. Inc. v. Munar, if the maritime compensation complaint was filed prior to 6 October 2008, the 120-day rule applies; if, on the other hand, the complaint was filed from 6 October 2008 onwards, the 240-day rule applies.
In this case, Montierro filed his Complaint on 3 December 2010, which was after the promulgation of Vergara on 6 October 2008. Hence, it is the 240-day rule that applies to this case, and not the 120-day rule.
Montierro cannot rely on the cases that he cited, a survey of which reveals that all of them involved Complaints filed before 6 October 2008. Wallem Maritime Services30 involved a Complaint for disability benefits filed on 26 November 1998. In Maersk Filipinas Crewing,31while the Decision did not mention the date the Complaint was filed, the LA’s Decision was rendered on 14 April 2008. Lastly, in Valenzona,32the Complaint was filed sometime before 31 January 2003. It thus comes as no surprise that the cases Montierro banks on followed the 120-day rule.
Applying the 240-day rule to this case, we arrive at the same conclusion reached by the CA. Montierro’s treatment by the company doctor began on 4 June 2010. It ended on 3 January 2011, when the company doctor issued a “Grade 10” final disability assessment.
Counting the days from 4 June 2010 to 3 January 2011, the assessment by the company doctor was made on the 213th day, well within the 240-day period. The extension of the period to 240 days is justified by the fact that Dr. Alegre issued an interim disability grade of “10” on 3 September 2010, the 91st day of Montierro’s treatment, which was within the 120-day period.
The case of Vergara also definitively settled the question how a conflict between two disability assessments — the assessment of the company-designated physician and that of the seafarer’s chosen physician — should be resolved.
The procedure is as follows: when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness for work shall be determined by the company-designated physician. The physician has 120 days, or 240 days, if validly extended, to make the assessment. If the physician appointed by the seafarer disagrees with the assessment of the company-designated physician, the opinion of a third doctor may be agreed jointly between the employer and the seafarer, whose decision shall be final and binding on them.
Vergara ruled that the procedure in the 2000 POEA-SEC must be strictly followed; otherwise, if not availed of or followed strictly by the seafarer, the assessment of the company-designated physician stands.
In this case, Montierro and Rickmers are covered by the provisions of the same 2000 POEA-SEC. It is the law between them. Hence, they are bound by the mechanism for determining liability for a disability benefits claim. Montierro, however, preempted the procedure when he filed on 3 December 2010 a Complaint for permanent disability benefits based on his chosen physician’s assessment, which was made one month before the company-designated doctor issued the final disability grading on 3 January 2011, the 213th day of Montierro’s treatment.
Hence, for failure of Montierro to observe the procedure provided by the POEA-SEC, the assessment of the company doctor should prevail.