ILLNESS IS DISPUTABLY PRESUMED WORK-RELATED, ALTHOUGH NOT LISTED AS OCCUPATIONAL DISEASE, IF IT OCCURS DURING EMPLOYMENT; HOWEVER, IT IS OVERCOME BY THE CONTRARY MEDICAL FINDING

Illness occurring while the seafarer was on board a vessel is disputably presumed work-related.

Being a disputable presumption it can be overcome by a medical finding of the physician stating it is not work-related. In such case, it becomes incumbent upon the claimant to prove the claim by substantial evidence.

Thus, the SC held in the following case:

Wilhelmsen-Smith Bell Manning/Wilhelmsen Ship Management Ltd./Fausto R. Preysler, Jr. Vs. Allan D. Suarez

G.R. No. 207328, April 20, 2015

Facts:

Allan Suarez alleged that he has been continuously hired by the Wilhelmsen-Smith, et al. for five years as ordinary seaman and has always been assigned to a car ship. His employment was covered by a Model Collective Bargaining Agreement (CBA) of the Associated Marine Officers and Seamen’s Union of the Philippines (AMOSUP). After his pre-employment medical examination, he boarded the vessel Toreador.

While on board, securing chain lashing heavy equipment on board the vessel, Suarez suffered severe back pain which radiated to his right abdomen. He was brought to a medical clinic in Rotterdam, Germany, where he was diagnosed with Right Pelvoureteric Junction Obstruction. His attending physician declared him unfit to work.

Suarez was medically repatriated and disembarked from the vessel on December 23, 2010. He immediately reported to the agency and was referred to its accredited physician at the Metropolitan Medical Center (MMC), Dr. Karen Frances Hao-Quan. Dr. Hao-Quan initially diagnosed him with “ureteropelvic junction obstruction” (UJO). On December 30, 2010, he underwent a CT scan of the urography and was continuously treated as an out-patient.

Allegedly, despite his medications, his condition persisted. He was again examined by Dr. Hao-Quan and was found to be suffering from “hydroneprosis secondary to UJO, right.” On February 7, 2011, he underwent “nephrectomy, right and cystocopy.” On February 16, 2011, he again consulted Dr. Hao-Quan who diagnosed him with “hydroneprhrosis secondary to UJO, right; s/p nephrectomy, right and cystoscopy.”

Meanwhile, Suarez consulted a doctor of his choice, Dr. Manuel C. Jacinto, Jr., who found him with “hydronephrosis secondary to UJO, right; gastric ulcer/erosion; h.pylori infections chronic pyelonephritis right kidney.”

Dr. Jacinto declared Suarez no longer fit to work as a seafarer, prompting him to file the complaint.   He prayed for permanent total disability compensation of US$89,100.00 under the AMOSUP CBA.

Wilhelmsen-Smith, et al. argue that in her January 31, 2011 medical report, MMC Asst. Medical Coordinator, Dr. Mylene Cruz-Balbon, declared that Suarez’s UJO was not work-related. Thereafter, or on February 7, 2011, after undergoing specialized medical tests, Suarez was subjected to prescribed major surgical procedures — cystoretrograde pyelography and nephrectomy, right kidney.

On March 31, 2011, Dr. Cruz Balbon reiterated that Suarez’s condition was not work-related. She also reported that the prognosis of his condition was good, barring unforeseen circumstances; and that if he is entitled to disability compensation, his disability grading secondary to loss of 1 kidney is Grade 7. Finally or on May 10, 2011, the company urologist, Dr. Ed Gatchalian, declared Suarez fit to work.

The Wilhelmsen-Smith, et al. also pointed out that under the POEA-SEC, Suarez’s illness is not an occupational disease. They maintained that medical studies show that UJO is mainly a genetic abnormality. Still, they shouldered the cost of his medical treatment until he was declared fit to work by the company-designated physician. They thus argued that Suarez’s claim for damages and attorney’s fees had no basis as their denial of his demand for disability compensation was not in bad faith.

LA Ruling:

The LA ruled that or Arbiter (LA) Fedriel S. Panganiban rendered a decision dismissing the case for lack of merit. LA Panganiban held that Suarez has not offered any evidence to refute the argument that his illness is not compensable for not being work-related and because the company-designated physician had declared him fit to work. The evidence, LA Panganiban emphasized, shows that the respondents have fully complied with their contractual obligations, thus negating any finding of liability for complainant’s claims.

NLRC Ruling:

The National Labor Relations Commission (NLRC) reversed LA Panganiban’s ruling. The labor tribunal found Suarez to have suffered from permanent total disability as he was unable to perform his job for more than 120 days.

It opined that his illness need not be shown to be work-related provided it occurred during the term of the contract. It ordered the Wilhelmsen-Smith, et al. to pay Suarez, jointly and severally, permanent total disability benefits of US$60,000.00 under the POEA-SEC, plus 10% attorney’s fees. It refused to honor the AMOSUP CBA “as the parties thereto were not specifically identified, particularly as regards respondents herein.”

The Wilhelmsen-Smith, et al. moved for reconsideration, but the NLRC denied the motion. They then appealed to the CA through a petition for certiorari, contending that the NLRC committed grave abuse of discretion in reversing LA Panganiban’s dismissal of the complaint.

CA Ruling:

The CA denied the petition. It found no grave abuse of discretion in the assailed NLRC judgment as it found the judgment supported by substantial evidence. It concurred with the NLRC conclusion that Suarez suffered from permanent total disability since he was unable to return to his job as a seafarer for more than 120 days. It stressed that from the time Suarez was medically repatriated on December 23, 2010, he was unable to work for 138 days since he was certified fit to work by the company-designated physician only on May 10, 2011.

The CA refused to give credit to the fit-to-work assessment of the company-designated physician. It considered the assessment not final, binding or conclusive on the seafarer, the labor tribunals, or the courts. Citing jurisprudence, it stressed that the seafarer may request a second opinion regarding his ailment or injury and the medical report issued by the physician of his choice shall be evaluated on its inherent merit by the labor tribunals and the courts.

Like the NLRC, the CA noted that the declaration by Dr. Jacinto, Suarez’s chosen physician, that he was no longer fit to work as a seaman jibed with the medical findings of one of the company doctors, Dr. Cruz-Balbon.   It concluded that the two physicians shared the view that Suarez’s work-related illness was subsisting and that he would feel the effect of the loss of his kidney for the rest of his life.

The appellate court rejected the Wilhelmsen-Smith, et al.’ submission that there was no evidence that the working conditions on board the Toreador caused or aggravated Suarez’s illness. It emphasized that it is enough that there is a reasonable linkage between the disease suffered by the employee and his work to make a rational mind conclude that Suarez’s work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.

The CA pointed out that in the present case, Suarez was deployed to the Wilhelmsen-Smith, et al.’ car ship and “was exposed to heavy equipment” requiring him to exert force that caused his medical condition. It also found credible Suarez’s claim that the food served onboard the vessel was extremely unhealthy as it was frozen, fatty and salty. The CA thus believed that Suarez’s working environment, as well as his diet onboard the vessel, may have aggravated or contributed to the development of his Hydronephrosis secondary to UJO.

The Wilhelmsen-Smith, et al. moved for, but failed to secure, a reconsideration from the CA.

Issues/s:

Whether or not the disputable presumption that an illness occurring during the employment contract of a seafarer and despite the same not being listed in the occupational disease can be overcome by physician’s certification that it is not work-related.

Whether or not the 120-day rule applies in this case

Whether or not the seafarer’s failure to consult a third doctor on account of conflicting medical findings of the two physicians means that the fit-to-work certification prevails

SC Ruling:

The SC found the petition meritorious.

It appears that Suarez’s illness, hydronephrosis secondary to UJO, right (a kidney ailment) is not work-related and therefore not compensable. Under Section 20 (B) 3 of the POEA-SEC, the employer is liable only for compensation/benefits when the seafarer suffers work-related injury or illness during the term of the contract.

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Even the disputed AMOSUP CBA (invoked by Suarez but rejected by the NLRC) states that a seafarer who suffers permanent disability as a result of work related illness or from an injury as a result of an accident, shall in addition to sick pay, be entitled to compensation according to the provisions of the CBA.

Also, UJO is not an occupational disease as it does not appear in the list of occupational diseases under Section 32-A of the POEA-SEC, although under its Section 20 (4), it is disputably presumed to be work-related. In this case, the company-designated physician certified that the subject illness is not work-related, an assessment supported by medical studies indicating that UJO or uteropelvic junction obstruction is a congenital abnormality that remains an enigma in terms of both diagnosis and therapy. The abnormality may be observed in both adults and children. Thus, LA Panganiban aptly concluded that the Wilhelmsen-Smith, et al. were able to overcome the presumption.

In addition, the company-designated physician declared Suarez fit to work. The declaration was made by Dr. Ed R. Gatchalian, a urological surgeon, in his letter of to Dr. Robert Lim, MMC Medical Coordinator. Under Section 20 (B) 3, par. 1 of the POEA-SEC, it is the company-designated physician who determines the fitness to work or the degree of permanent disability of a seafarer who disembarks from the vessel for medical treatment.

The medical certificate issued by Dr. Jacinto to Suarez “shows that it was made without proof of any extensive examination having been conducted” and it was “evident that it was the first and only consultation made by the complainant” with Dr. Jacinto. And if we may add, Dr. Jacinto made substantially the same finding as those of the company doctors that Suarez suffered from UJO. In this light, we just cannot accept Suarez’s one-time consultation with Dr. Jacinto as a credible basis for his unfit-to-work certification.

The NLRC and CA’s reliance on the 120-day rule for the award of permanent total disability compensation to Suarez is misplaced.

The Court stressed that the degree of a seafarer’s disability cannot be determined on the basis solely of the 120-day rule or in total disregard of the seafarer’s employment contract — executed in accordance with the POEA-SEC — the parties’ CBA, if there is one, and Philippine law and rules in case of any unresolved dispute, claim or grievance arising out of or in connection with the POEA-SEC. Stated otherwise, the Court emphasized that the application of the 120-day rule must depend on the circumstances of the case, considering especially the parties’ compliance with their contractual duties and obligations.

In this case, Suarez was declared fit to work by Dr. Gatchalian 138 days after his repatriation, which was well within the extended 240-day period set by Rule X, Section 2, Book IV of the Implementing Rules of the Labor Code37 (the Rules on Employees Compensation), for the physician to make an assessment of the seafarer’s disability or to declare him fit to work as explained in Vergara. The fit-to-work certification issued by Dr. Gatchalian clearly negated a permanent total disability assessment. Yet, the NLRC and the CA rejected Dr. Gatchalian’s assessment and invoked the 120-day rule, declaring that Suarez was permanently disabled because he had been unable to resume his work as a seaman since he disembarked on December 23, 2010. Necessarily, they also upheld the unfit-to-work certification of Dr. Jacinto, Suarez’s physician of choice.

While Suarez was free to consult a physician of his choice regarding his medical condition and/or disability as implied by the last paragraph of Section 20 (B) 3 of the POEA-SEC, the contrary opinion of his chosen physician should have been referred to a third doctor, jointly with the Wilhelmsen-Smith, et al., for a binding and final opinion. He should have initiated the referral considering that the Wilhelmsen-Smith, et al. were not aware that he consulted Dr. Jacinto. Instead, he filed the complaint upon issuance of the unfit-to-work certification of Dr. Jacinto.

The filing of the complaint was premature and constituted a breach of Suarez’s contractual obligation with the Wilhelmsen-Smith, et al.. And because there was no third and binding opinion, Dr. Gatchalian’s fit-to-work assessment should prevail.