240 days is the maximim period that the employer is given to declare the fitness or disability of seafarer through its designated physician. Failure to do so within the period may establish the permanent disability status of the worker as held below:
Sealanes Marine Serives, Inc./Arklow Shipping Netherland and/or Christopher Dumatol vs. Arnel G. Dela Torre
G.R. No. 214132, February 18, 2015
Arnel Dela Torre was hired by Sealanes Marine Services, Inc. (Sealanes), in behalf of its foreign principal, Arklow Shipping Netherland (petitioners), as an able seaman on board M/V Arklow Venturefor a period of nine months. An overriding CBA between Dela Torre’s union, Associated Marine Officers’ and Seamen’s Union of the Philippines, and the Netherlands Maritime Employers Association, called “CBA for Filipino Ratings on Board Netherlands Flag Vessels” (Dutch CBA), also covered his contract.
During the crew’s rescue boat drill at the port of Leith, Scotland, he figured in an accident and injured his lower back. An X-ray of his lumbosacral spine was taken at a hospital at the port, but while according to his attending physician he sustained no major injury, the pain in his back persisted and he was repatriated. He was referred by Sealanes to the Marine Medical Services of the Metropolitan Medical Center. An X-ray of his lumbosacral spine showed, per the medical report, that he sustained “lumbar spine degenerative changes with associated L1 compression fracture.” The next day, a Magnetic Resonance Imaging scan of his lumbar spine revealed an “acute compression fracture body of L1; right paracentral disc protrusion at L5-S1 causing minimal canal compromise; L4-L5 and L5-S1 disc dehydration.” Another X-ray showed “compression deformity of L1 vertebra; L2-L1 disc space is now defined but slightly narrowed”. His fourth X-ray still showed a “compression fracture, L1 with narrowed L2-L1 disc space; no significant neural foraminal compromise.
He underwent several physical therapy sessions, and finally on March 10, 2011 the company-designated physician assessed him with a Grade 11 disability for slight rigidity or one-third loss of motion or lifting power of trunk. Nonetheless, he was informed of the assessment only in May 2011, or more than 240 days since the accident.
He filed a complaint for disability benefits, medical reimbursement, underpaid sick leave, damages and attorney’s fees.
The LA rendered judgment awarding him US$80,000.00 in disability benefits as provided in the Dutch CBA, plus 10% as attorney’s fees. In particular, the LA held that such an award cannot be made to depend on the company-designated physician’s disability assessment which was issued more than 120 days after the accident, especially if despite treatment for more than 240 days Dela Torre was still unable to return to his accustomed work.
Sealanes, et al appealed to the NLRC contending that the disability benefits due to Dela Torre should be based on his Grade 11 disability assessment issued by the company-designated physician. Dela Torre also filed his appeal assailing the denial of his medical and transportation expenses.
The NLRC affirmed the award of total disability benefits to Dela Torre noting that he continued with his rehabilitation even after the company’s Grade 11 disability rating issued on March 10, 2011, indicating that its disability rating was intended merely to comply with the 240-day limit for the company-designated physician to either declare him fit to work or to assess the degree of his permanent disability.
Sealanes, et al’ motion for reconsideration was denied. They filed petition for certiorari.
The CA ruled that the seafarer’s right to disability benefits is determined not solely by the company’s assessment of his impediment but also by law, contract and medical findings. Citing Articles 191 to 193 of the Labor Code, Section 2, Rule X of the AREC, the POEA SEC, the parties’ CBA, and the employment contract between the parties, the appellate concurred that Dela Torre was entitled to total permanent disability benefits.
Thus, the SC petition.
Whether or not the permanent disability is established despite findings of company designated physician beyond the 240-day period declaring lesser disability status
The SC denied the petition.
It is expressly provided in Article 192(c)(1) of the Labor Code that a “temporary total disability lasting continuously for more than  days, except as otherwise provided in the Rules,” shall be deemed total and permanent. Section 2(b), Rule VII of the AREC, likewise provides that “adisability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided under Rule X of these Rules.”
Under Section 32 of the POEA SEC, only those injuries or disabilities classified as Grade 1 are considered total and permanent. In Kestrel Shipping Co., Inc. v. Munar, the Court read the POEA SEC in harmony with the Labor Code and the AREC, and explained that: (a) the 120 days provided under Section 20(B)(3) of the POEA SEC is the period given to the employer to determine fitness to work and when the seafarer is deemed to be in a state of total and temporary disability; (b) the 120 days of total and temporary disability may be extended up to a maximum of 240 days should the seafarer require further medical treatment; and (c) a total and temporary disability becomes permanent when so declared by the company-designated physician within 120 or 240 days, as the case may be, or upon the expiration of the said periods without a declaration of either fitness to work or permanent disability and the seafarer is still unable to resume his regular seafaring duties.
Dela Torre was repatriated on August 4, 2010 and immediately underwent treatment and rehabilitation at the company-designated facility, Marine Medical Services of the Metropolitan Medical Center. It lasted until July 20, 2011, exceeding the 240 days allowed to declare him either fit to work or permanently disabled. Although he was given a Grade 11 disability rating on March 10, 2011, the assessment may be deemed tentative because he continued his physical therapy sessions beyond 240 days. Yet, despite his long treatment and rehabilitation, he was eventually unable to go back to work as a seafarer, which fact entitled him under the Dutch CBA to maximum disability benefits.
Thus, that Dela Torre required therapy beyond 240 days and remained unable to perform his customary work during this time rendered unnecessary any further need by him to secure his own doctor’s opinion or that of a neutral third doctor to determine the extent of his permanent disability.