CONFLICTING ASSESSMENT REQUIRES THE SEAFARER TO OBSERVE THE PROCEDURE OF SECURING A THIRD PARTY OPINION SUCH THAT IF THERE IS NON-OBSERVANCE, THE COMPANY DESIGNATED PHYSICIAN’S CERTIFICATION PREVAILS

Conflicting assessment is a possibility in a disability claim of the seafarer. However, the company designated physician’s certification stating the seafarer is fit to work prevails if the seafarer fails to follow the procedure of obtaining the second opinion or third opinion. In filing the disability claims prior to the second opinion, his action may be deemed as premature.

The Supreme Court held in the following case:

Veritas Maritime Corporation and/or Erickson Marquez vs. Ramon A. Gepanaga, Jr.
G.R. No. 206285, February 4, 2015

Facts:

Gepanaga entered into a contract of employment with Veritas, for and in behalf of St. Paul Maritime Corporation, to work on board the vessel M.V. Melbourne Highway as Wiper Maintenance for six (6) months. By executing the contract of employment, the parties agreed to be bound by the provisions of Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC), as well as the IBF-JSU AMOSUP IMMAJ collective bargaining agreement (CBA). As Gepanaga was able to complete his contract with no incident, the parties mutually agreed to extend his tenure as Wiper Maintenance.

On November 28, 2008, while Gepanaga was doing maintenance work, his middle finger got caught between the cast metal piston liners of the diesel generator. He was then given first aid on board the vessel and was later brought to a hospital in Omaezaki, Japan.

In the hospital, Gepanaga was diagnosed with “open fracture of the distal phalanx, left middle finger.” He was repatriated on December 3, 2008. On December 4, 2008, Gepanaga reported right away to the clinic of Dr. Nicomedez G. Cruz (Dr. Cruz), the company-designated physician. After Gepanaga was referred to the orthopedic surgeon of his clinic, Dr. Cruz concurred in the initial findings of doctors in Japan that Gepanaga was suffering from a “[c]rushing injuring with fracture distal phalanx left middle finger.”

After a series of medical treatments, Dr. Cruz noted that Gepanaga no longer suffered the pain in the affected area and that his “grip is good and functional.” Dr. Cruz thus issued his medical report declaring that Gepanaga was “cleared fit to go back to work.”

Unconvinced that he had fully recovered from his injury, Gepanaga filed a complaint against Veritas, Marquez and “K” Line Ship Management, Inc., claiming that the latter is the foreign principal of Veritas and owner of the M.V. Melbourne Highway. Several days after filing his complaint, Gepanaga sought the opinion of Dr. Edmundo A. Villa (Dr. Villa) of the Sogod District Hospital in Leyte. That same day, Dr. Villa gave his medical report finding that Gepanaga suffered from “permanent disability due to old compound fracture of the 3rdleft phalanx/middle finger-left.”

Thus, when Gepanaga filed his position paper, he included Dr. Villa’s report to support his contention that the injuries he had sustained while on board the M.V. Melbourne rendered him permanently unfit to work.

LA Ruling:

The LA dismissed the complaint for lack of merit. Finding the evaluation of the company-designated physician, Dr. Cruz, more credible than the findings of Dr. Villa, the LA opined that because he was the one who attended to Gepanaga from his repatriation until he was declared fit to work, Dr. Cruz was in the best position to make the evaluation of Gepanaga’s true state of health.

Moreover, the LA denied the claim for sick wages allowance after it found that as early as March 4, 2009, Gepanaga was already cleared to return to work. For lack of substantial evidence, the LA also denied Gepanaga’s claims for reimbursement of his medical expenses, for damages and attorney’s fees

NLRC Ruling:

The NLRC found merit in Gepanaga’s claim and reversed the decision of the LA. It opined that the assessment of the company-designated physician should not be binding in determining the true condition of Gepanaga, considering that he was chosen, engaged and remunerated by Veritas and, as such, was likely to advance and serve its interests.

Dr. Villa, on the other hand, was a government physician, and the NLRC gave credence to his medical assessment of Gepanaga’s condition. The NLRC also noted that the allegation that Gepanaga was covered by the CBA was never refuted, and, thus, awarded him $89,100.00 in accordance with its provisions. Both parties sought reconsideration. The NLRC denied the motion of Veritas but granted Gepanaga’s claim for attorney’s fees.

CA Ruling:

In finding no grave abuse of discretion on the part of the NLRC, the CA held that Gepanaga indeed suffered from permanent disability as he was unable to perform his customary work as seaman for more than 120 days. According to the CA, although the Certification from Dr. Cruz was issued 91 days after his repatriation on December 3, 2008, there was no categorical evidence to show that he was able to resume his jobafter the crushing injury which resulted in the fracture of the distal phalanx left middle finger.

Issue/s:

Whether or not the seafarer is under obligation to obtain the opinion of a third doctor if his chosen physician disagrees with the company physician’s findings

Whether or not the seafarer’s complaint is premature for not obtaining the opinion of his physician prior to filing the complaint

SC Ruling:

Re-numbered Labor Code 2017

In Vergara, stated that the Department of Labor and Employment (DOLE), through the POEA, had simplified the determination of liability for work-related death, illness or injury in the case of Filipino seamen working in foreign ocean-going vessels. Every seaman and vessel owner (directly or represented by a local manning agency) are required to execute the POEA-SEC as a condition sine qua non prior to the deployment of the seaman for overseas work. The POEA-SEC is supplemented by the CBA between the owner of the vessel and the covered seaman.

As in Dumadag, Gepanaga failed to observe the prescribed procedure of having the conflicting assessments on his disability referred to a third doctor for a binding opinion. Consequently, the Court applies the following pronouncements laid down in Vergara that while the seafarer had the right to seek a second and even a third opinion, the final determination of whose decision must prevail must be done in accordance with an agreed procedure. If the seafarer did not avail of this procedure, the company-designated doctor’s certification is the final determination that must prevail.

For failure of Gepanaga to observe the procedures laid down in the POEA-SEC and the CBA, the Court is left without a choice but to uphold the certification issued by the company-designated physician that the respondent was “fit to go back to work.”

The SC further held that petitioner’s claim for benefits was premature. One of the conditions for seafarer to pursue an action for total and permanent disability benefits that must be present is that the company-designated physician declared that he is fit for sea duty within the 120-day or 240-day period but his physician of choice and the doctor chosen under Section 20-B(3) of the POEA-SEC are of a contrary opinion.

In this case, when Gepanaga filed his complaint with the arbitration office, he had yet to consult his own physician, Dr. Villa. At that time, he was armed only with the belief that he had yet to fully recover from his injured finger because of the incident that occurred on board the M.V. Melbourne Highway. It was only a few days before he filed his position paper on June 15, 2009, that Gepanaga sought the services of Dr. Villa.

It bears pointing out that even worse than the case in Dumadag, Gepanaga’s personal physician examined him for only one (1) day, two and a half months (2 ½) after he had filed his claim for permanent disability benefits. Furthermore, the medical certificate issued by Dr. Villa after examining the respondent failed to state the basis of his assessment and conclusion of permanent disability, more than three (3) months after the respondent was declared fit to work by Dr. Cruz, the company-designated physician.

The seafarer’s inability to resume his work after the lapse of more than 120 days from the time he suffered an injury and/or illness is not a magic wand that automatically warrants the grant of total and permanent disability benefits in his favor.