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BURDEN TO REFER CASE TO THIRD DOCTOR IS SHIFTED TO EMPLOYER UPON NOTICE BY SEAFARER DISPUTING COMPANY DOCTOR’S FINDINGS
Aldrine B. Ilustricimo vs. NYK-Fil Ship Management, Inc./International Cruise Services, Ltd. and/or Josephine J. Francisco
G.R. No. 237487, June 27, 2018
Third doctor; Notification of seafarer’s intent to dispute the company doctors’ findings shifts the burden to refer the case to a third doctor to the employer; Work-relatedness; It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work; Compensability;
Facts:
Petitioner Aldrine B. Ilustricimo (Ilustricimo) was engaged by respondent International Cruise Services Ltd., through respondent NYK-Fil Ship Management, Inc. (collectively, NYK, et al..), as a Quarter Master onboard its vessels for several years. His last employment with NYK, et al. was on board the vessel MV Crystal Serenity. Prior to his embarkation, Ilustricimo underwent a routine Pre-Employment Medical Examination and was declared physically fit to work.
While MV Crystal Serenity was on its way to Florida, USA, Ilustricimo started experiencing gross hematuria, or blood in his urine. He reported the matter to his superiors and was given antibiotics for suspected urinary tract infection. Due to his medical condition, Ilustricimo was brought to a hospital in Key West, Florida, where he was subjected to a CT Scan.
The results revealed the presence of three polypoid masses in his bladder. Ilustricimo was medically repatriated on November 22, 2014 and immediately referred to the company-accredited hospital for treatment. Dr. Nicomedes Cruz (Dr. Cruz), the company-designated doctor, diagnosed him with “urothelial carcinoma of the urinary bladder, low grade” or “bladder cancer.”
After undergoing a series of chemotherapy sessions and operations, Ilustricimo’s attending doctors assessed him with an interim disability rating of Grade 7. In the same report, Dr. Cruz noted that risk factors for Ilustricimo’s illness include “occupational exposure to aromatic amines and cigarette smoking.”
Despite the interim disability grading given, the company doctor noted, in a report that Ilustricimo still complains of “on and off hypo gastric pain.” He was then advised to undergo repeat cystoscopy. Subsequently, Dr. Cruz issued Ilustricimo with a final assessment of Grade 7 disability-moderate residuals or disorder of the intra-abdominal organ.
Later, Ilustricimo underwent another operation using his own funds. This prompted him to secure the opinion of another physician, Dr. Richard Combe, who diagnosed him with bladder mass and declared him unfit to work due to his need to undergo instillation chemotherapy and cystoscopy every three months. He was declared unfit to work by Dr. Combe.
Thereafter, Ilustricimo, thru counsel, sent NYK, et al. a letter claiming total and permanent disability benefits. Ilustricimo further declared in the said letter his willingness to undergo another examination to prove the extent of his disability being claimed. Notwithstanding Ilustricimo’s communication, NYK, et al. failed to respond, prompting him to file a complaint for total and permanent disability before the NCMB.
VA Ruling:
The Voluntary Arbitrator (VA) issued a Decision in favor of Ilustricimo and, accordingly, ordered NYK, et al. to pay him total and permanent disability benefits in the amount of USD95,949.00.
Aggrieved, NYK, et al. elevated the case via a petition for review before the CA.
CA Ruling:
The CA granted the petition in the assailed Decision and adjudged NYK, et al. liable only for partial permanent disability benefits under the parties’ Collective Bargaining Agreement amounting to USD40,106.98.
According to the CA, while Ilustricimo claims to have secured the opinion of a second doctor, no such medical certification from the adverted personal doctor is extant in the records of the case, and that only a copy of the October 16, 2015 letter-request from Ilustricimo’s counsel seeking total and permanent disability benefits from NYK, et al. was submitted.
The CA likewise agreed with NYK, et al.’s postulation that, even on the assumption that Ilustricimo had indeed secured the opinion of a second doctor, Ilustricimo failed to seek the opinion of a third doctor as mandated under the 2010 Philippine Overseas Employment Agency -Standard Employment Contract (POEA-SEC). Thus, without the second doctor’s certification and the non-referral of the case to a third doctor, the CA ruled that Ilustricimo’s disability benefits must be based on the final disability assessment made by the company-designated doctor.
Ilustricimo moved for reconsideration but it was denied by the CA. Hence, the SC petition.
Issue/s:
Whether or not an illness that is not listed as an occupational disease under Section 32 of the POEA-SEC is not compensable
Whether or not upon being notified of seafarer’s intent to dispute the company doctors’ findings the burden to refer the case to a third doctor has shifted to the employer
Whether or not the rule that the company-designated physician’s findings shall prevail in case of non-referral of the case to a third doctor is a hard and fast rule
Whether or not the disability rating of Grade 7 given by company doctor should prevail in view of seafarer’s failure to prove that he sought a second medical opinion
SC Ruling:
The SC granted the petition.
The SC held that for disability to be compensable under Section 20(A) of the 2010 PO EA-SEC, two elements must concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer’s employment contract. The same provision defines a work-related illness is “any sickness as a result of an occupational disease listed under Section 32-A of the Contract with the conditions set therein satisfied.” Meanwhile, illnesses not mentioned under Section 32 of the POEA-SEC are disputably presumed as work-related.
The Labor Code of the Philippines 2018 Edition (re-numbered and updated)
Notwithstanding the presumption of work-relatedness of an illness under Section 20(A)(4), the seafarer must still prove by substantial evidence that his work conditions caused or, at least, increased the risk of contracting the disease. Settled is the rule that for illness to be compensable, it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer.
It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.
In the present case, it is undisputed that Ilustricimo suffered an illness while on board the M/V Crystal Serenity. What needs to be determined is whether Ilustricimo’s illness is work-related, and, therefore, compensable.
No less than NYK, et al.’s doctor diagnosed Ilustricimo with bladder cancer and opined that his occupation exposed him to elements that increased his risk of contracting the illness. As found by the VA, Ilustricimo was employed by NYK, et al. for 21 years. It is, therefore, not implausible to conclude that Ilustricimo’s work may have caused, contributed, or at least aggravated his illness. Given the company doctors’ conclusion and the afore-stated facts, the burden on the part of Ilustricimo to prove the causality of his illness and occupation had been eliminated.
NYK, et al. themselves did not dispute Ilustricimo’s entitlement to disability benefits. They only dispute that his disability is total and permanent. From the foregoing, what NYK, et al. assail is the amount of disability benefits due to Ilustricimo, and not his entitlement thereto. Hence, there is no real issue with respect to the work-relatedness and compensability of Ilustricimo’s illness.
POEA-SEC, Section 20(A)(3) of the contract provides that if a doctor appointed by the seafarer disagrees with the assessment of the company-designated doctor, a third doctor may be agreed jointly between the employer and the seafarer, and the third doctor’s decision shall be final and binding on both parties.
This referral to a third doctor has been held by the Court to be a mandatory procedure as a consequence of the provision in the POEA-SEC that the company-designated doctor’s assessment should prevail in case of non-observance of the third doctor referral provision in the contract. Stated otherwise, the company can insist on its disability rating even against the contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking for a referral to a third doctor who shall make his or her determination and whose decision shall be final and binding on the parties.
According to NYK, et al., Ilustricimo’s second medical opinion only came to their knowledge during one of the scheduled mandatory conferences before the VA. Citing Philippine Hammonia Ship Agency, Inc. vs. Dumadag (Hammonia), Silagan vs. Southfield Agencies, Inc., and TSM Shipping Phils., Inc. vs. Patiflo, they argue that Ilustricimo’s failure to communicate his separate medical certification prior to the filing of the complaint not only constitutes a breach of his contractual obligations under the POEA-SEC, but also renders the complaint premature and is a ground for the dismissal of his claim for disability benefits.
The SC ruled that NYK, et al.’s reliance on the above-stated cases is misplaced. In Hammonia, the seafarer-claimant utterly disregarded the third-doctor provision and filed a claim for permanent total disability benefits right after securing the opinion of four doctors of his choosing. It is against this factual backdrop that the SC declared that the seafarer-claimant’s filing of the complaint without having consulted a third doctor constitutes a breach of his duty under the POEA-SEC. In the same vein, the seafarer-claimants in Silagan and TSM Shipping never informed their employers of their intent to consult a third doctor after consulting a second doctor.
In stark contrast, according to SC, NYK, et al. do not deny receiving Ilustricimo’s letter despite their insistence that he failed to activate the third doctor provision. In fact, NYK, et al. repeatedly insisted that the letter was not meant to dispute the company-designated doctor’s assessment, but rather to inform them that Ilustricimo needed continued medical assistance. On the assumption that Ilustricimo indeed “belatedly” informed NYK, et al. of the opinion of his second doctor and his intent to refer his case to a third doctor, the fact remains that they have been notified of such intent.
Citing Formerly INC Shipmanagement Incorporated vs. Rosales the SC reiterated its earlier pronouncement in Bahia Shipping Services, Inc. vs. Constantino that when the seafarer challenges the company doctor’s assessment through the assessment made by his own doctor, the seafarer shall so signify and the company thereafter carries the burden of activating the third doctor provision.
The POEA-SEC does not require a specific period within which the parties may seek the opinion of a third doctor, and they may do so even during the mandatory conference before the labor tribunals. Accordingly, upon being notified of Ilustricimo’s intent to dispute the company doctors’ findings, whether prior or during the mandatory conference, the burden to refer the case to a third doctor has shifted to NYK, et al. This, they failed to do so, and Ilustricimo cannot be faulted for the non-referral. Consequently, the company-designated doctors’ assessment is not binding.
The rule that the company-designated physician’s findings shall prevail in case of non-referral of the case to a third doctor is not a hard and fast rule. It has been previously held that labor tribunals and the courts are not bound by the medical findings of the company-designated physician and that the inherent merits of its medical findings will be weighed and duly considered.
The SC concurred with the VA’s findings that Ilustricimo’s illness is serious in nature considering the company doctors’ requirement for him to undergo periodic cystoscopy despite having undergone chemotherapy and surgery. Ilustricimo was never declared “cancer-free” and “fit to work” by his attending physicians and his illness persisted despite the final disability grade of 7 given. This means that Ilustricimo could no longer return to the seafaring profession and is, thus, permanently and totally disabled.
In determining whether a disability is total or partial, what is crucial is whether the employee who suffered from disability could still perform his work notwithstanding the disability he met. A permanent partial disability, on the other hand, presupposes a seafarer’s fitness to resume sea duties before the end of the 120/240-day medical treatment period despite the injuries sustained and works on the premise that such partial injuries did not disable a seafarer to earn wages in the same kind of work or similar nature for which he was trained.
Ilustricimo cannot be expected to resume sea duties if the risk of contracting his illness is associated with his previous occupation as Quarter Master. Records do not show that he was re-employed by respondent NYK or by any other manning agency from the time of his repatriation until the filing of the instant petition. Moreover, the recurrence of mass in Ilustricimo’s bladder, the requirement by both the company doctor and his personal doctor that he undergo repeat cystoscopy to monitor polyp growth, his subsequent operation to remove the growing polyps in his bladder even after the lapse of the 240-day period for treatment and despite the final disability grading given, all sufficiently show that his disability is total and permanent.
Ilustricimo’s disability being permanent and total, he is entitled to 100% compensation in the amount of US$95,949.00 as stipulated in par. 20.9 of the parties’ CBA and as adjudged by the VA.