PERMANENT AND TOTAL DISABILITY CANNOT BE AWARDED TO A SEAFARER WHO FAILED TO SIGNIFY HIS INTENTION TO REFER THE CONFLICTING ASSESSMENTS TO THE THIRD DOCTOR

Permanent and total disability of laborers is defined under Article 192 (c) (1) of the Labor Code providing that temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules, shall be deemed total and permanent.

The SC held in the following case, as follows:

C.F. Sharp Crew Management, Inc./Manny Sabino and/or Norwegian Cruise Line, Ltd. vs. Jowell P. Santos
G.R. No. 213731, August 1, 2018

Permanent and total disability; Third doctor; Failure of the seafarer to signify his intention to refer to the third doctor on account of the conflicting findings between his doctor and that of the company the disability cannot be considered permanent and total; Hypertension and diabetes; Hypertension and diabetes do not ipso facto result into a permanent and total disability

Facts:

Respondent Jowell P. Santos (Santos) was hired as an environmental operator by C.F. Sharp Crew Management, Inc., (CF Sharp) for and in behalf of its principal, Norwegian Cruise Line, Ltd., (collectively, C.F. Sharp, et al.), on board the vessel “M/S Norwegian Gem” for a period of nine (9) months.

While on board, Santos experienced dizziness, over fatigue, frequent urination and blurring of the eyesight. He was brought to the ship’s clinic for initial medical examination and was found to have elevated blood sugar and blood pressure. He was immediately referred to Cape Canaveral Hospital in Miami, Florida, USA, where he was found to have a history of diabetes and has been smoking a pack of cigarettes daily for ten (10) years.

On January 12, 2012, Santos was repatriated to the Philippines. The next day, he was immediately referred to CF Sharp’s company-designated physicians at the Sachly International Health Partners Clinic (SJHPC). The physicians subjected Santos to different tests and treatments, which were recorded in several medical reports. It was confirmed that he had Diabetes Mellitus II and hypertension. Santos was advised to continue his medications.

Thereafter, Santos was examined by a nephrologist who noted that he was asymptomatic with a blood pressure (BP) of 120/70. His urinalysis and serum creatinine were normal. Thus, he was cleared from a nephrological standpoint and was again advised to continue his maintenance medications. Thereafter, after 118 days from repatriation, the company-designated physicians issued a certification stating that Santos’s condition was not work-related and that his final disability grading assessment for hypertension and diabetes was Grade 12.

Unconvinced, Santos consulted Dr. May S. Donato-Tan (Dr. Donato-Tan), a specialist in Internal Medicine and Cardiology. In her medical certificate, Dr. Donato-Tan noted that Santos had high blood pressure and uncontrolled diabetes mellitus. She also opined that Santos’s condition was work-related due to the pressure in the cruise ship, which elevated his blood pressure, and that the food therein was not balanced, which elevated his blood sugar. She concluded that Santos was permanently disabled to discharge his duties as a seafarer.

Hence, Santos filed a complaint for disability and sickness benefits with damages before the LA.

LA Ruling:

The LA ruled in favor of Santos.

It found that Santos suffered from permanent and total disabilities due to his hypertension and diabetes. The LA also awarded the maximum benefits provided by the Collective Bargaining Agreement (CBA) between C.F. Sharp, et al. and Santos.

Aggrieved, C.F. Sharp, et al. appealed to the NLRC.

NLRC Ruling:

The NLRC modified the decision of the LA.

It held that Santos did not suffer from a permanent and total disability because he failed to prove that the diabetes and hypertension he suffered were work-related. The NLRC gave credence to the medical assessment and finding of the company-designated physicians, which stated that Santos only suffered a partial disability of Grade 12. It also found that Santos was entitled to a sickness pay.

Santos filed a motion for reconsideration but it was denied by the NLRC. Undaunted, Santos filed a petition for certiorari before the CA arguing that the NLRC committed grave abuse of discretion.

CA Ruling:

The CA reversed and set aside the NLRC ruling and reinstated the LA ruling.

It held that Santos suffered from permanent and total disabilities because of his hypertension and diabetes. The CA opined that Santos’s diseases were work-related because these were caused by the unhealthy working conditions in C.F. Sharp, et al.’s ship. It also ruled that Santos had the right to consult his independent physician of choice to determine the degree of his disability. The CA concluded that since 120 days had passed but Santos had not returned to work, he is entitled to permanent and total disability benefits.

C.F. Sharp, et al. moved for reconsideration but it was denied by the CA. Hence, the petition before the SC.

Issue/s:

Whether or not despite failure of the seafarer to signify his intention to refer to the third doctor on account of the conflicting findings between his doctor and that of the company the disability can be considered permanent and total

Whether or not Hypertension and diabetes ipso facto result into a permanent and total disability

Whether or not permanent disability is determined not by the number of days that the seafarer could not work, but by the disability grading the doctor recognizes based on his resulting incapacity to work and earn his wages

SC Ruling:

The SC found the petition meritorious.

The SC held that the law that defines permanent and total disability of laborers would be Article 192 (c) (1) of the Labor Code providing that temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules, shall be deemed total and permanent.

On the other hand, the rule referred to in Article 192 is Rule X, Section 2 of the Amended Rules on Employees’ Compensation, which implemented Book IV of the Labor Code (IRR). This should be read in relation to Sec. 20(A) (3) of the POEA-SEC.

The Labor Code of the Philippines 2018 Edition

Citing Crystal Shipping, Inc. vs. Natividad (Crystal Shipping), the SC ruled that permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body. In Vergara vs. Hammonia Maritime Services, Inc. (Vergara), however, it was declared that the doctrine in Crystal Shipping – that inability to perform customary work for more than 120 days constitutes permanent total disability – is not absolute. By considering the law, the POEA-SEC, and especially the IRR, Vergara extended the period within which the company-designated physician could declare a seafarer’s fitness or disability to 240 days. Further, the disability grading issued by the company-designated physician was given more weight compared to the mere incapacity of the seafarer for a period of more than 120 days.

In Elburg Shipmanagement Phils., Inc. vs. Quiogue, Jr. (Elburg), it was confirmed that the Crystal Shipping doctrine was not binding because a seafarer’s disability should not be simply determined by the number of days that he could not work. Nevertheless, it was held that the determination of the fitness of a seafarer by the company-designated physician should be subject to the periods prescribed by law. Elburg provided a summation of periods when the company-designated physician must assess the seafarer.

While a seafarer is entitled to temporary total disability benefits during his treatment period, it does not follow that he should likewise be entitled to permanent total disability benefits when his disability was assessed by the company-designated physician after his treatment. He may be recognized to have permanent disability because of the period he was out of work and could not work, but the extent of his disability (whether total or partial) is determined, not by the number of days that he could not work, but by the disability grading the doctor recognizes based on his resulting incapacity to work and earn his wages.

It is the doctor’s findings that should prevail as he or she is equipped with the proper discernment, knowledge, experience and expertise on what constitutes total or partial disability. The physician’s declaration serves as the basis for the degree of disability that can range anywhere from Grade 1 to Grade 14. Notably, this is a serious consideration that cannot be determined by simply counting the number of treatment lapsed days.

Accordingly, the timely medical assessment of a company-designated physician is given great significance by the Court to determine whether a seafarer is entitled to disability benefits. Indeed, the mere inability of a seafarer to work for a period of 120 days is not the sole basis to determine a seafarer’s disability.

In this case, the company-designated physicians suitably gave their medical assessment of Santos’ disability before the lapse of the 120-day period. It was even unnecessary to extend the period of medical assessment to 240 days. After rigorous medical diagnosis and treatments, the company-designated physicians found that Santos only had a partial disability and gave a Grade 12 disability rating.

As the medical assessment of the company-designated physicians was meticulously and timely provided, it must be given weight and credibility by the Court. The medical assessment of the company-designated physician was not validly challenged.

Sec. 20(A) (3) of the POEA-SEC provides for a mechanism to challenge the validity of the company-designated physician’s assessment. If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.

The referral to a third doctor is mandatory when: (1) there is a valid and timely assessment by the company-designated physician and (2) the appointed doctor of the seafarer refuted such assessment.

In INC Shipmanagement, Inc. vs. Rosales, the Court stated that to definitively clarify how a conflict situation should be handled, upon notification that the seafarer disagrees with the company doctor’s assessment based on the duly and fully disclosed contrary assessment from the seafarer’s own doctor, the seafarer shall then signify his intention to resolve the conflict by the referral of the conflicting assessments to a third doctor whose ruling, under the POEA-SEC, shall be final and binding on the parties. Upon notification, the company carries the burden of initiating the process for the referral to a third doctor commonly agreed between the parties.

In this case, Santos only presented a lone medical certificate from Dr. Donato-Tan, which was in contrast with the extensive and numerous medical assessment of the company-designated physicians. Consequently, the credibility and reliability of Dr. Donato-Tan’s medical certificate is doubtful.

Santos never signified his intention to resolve the disagreement with C.F. Sharp, et al.’s company-designated physicians by referring the matter to a third doctor. It is only through the procedure provided by the POEA-SEC, in which he was a party, can he question the timely medical assessment of the company-designated physician and compel C.F. Sharp, et al. to jointly seek an appropriate third doctor. Absent proper compliance, the final medical report of the company-designated physician must be upheld. Ergo, he is not entitled to permanent and total disability benefits.

The SC held further that hypertension and diabetes do not ipso facto result into a permanent and total disability.

Essential hypertension is among the occupational diseases enumerated in Sec. 32-A of the POEA-SEC. To enable compensation, the mere occurrence of hypertension, even as it is work-related and concurs with the four (4) basic requisites of the first paragraph of Sec. 32-A, does not suffice. The POEA-SEC requires an element of gravity. It speaks of essential hypertension only as an overture to the impairment of function of body organs like kidneys, heart, eyes and brain. This impairment must then be of such severity as to be resulting in permanent disability. Sec. 32-A, paragraph 2, thus, requires three successive occurrences: first, the contracting of essential hypertension; second, organ impairment arising from essential hypertension; and third, permanent disability arising from that impairment. In keeping with the requisite gravity occasioning essential hypertension, the mere averment of essential hypertension and its incidents do not suffice.

On the other hand, diabetes is not among Sec. 32-A’s listed occupational diseases. As with hypertension, it is a complex medical condition typified by gradations. Blood sugar levels classify as normal, pre-diabetes, or diabetes depending on the glucose level of a patient. Diabetes mellitus is a metabolic and a familial disease to which one is pre-disposed by reason of heredity, obesity or old age. It does not indicate work-relatedness and by its nature, is more the result of poor lifestyle choices and health habits for which disability benefits are improper.

Manifestly, hypertension and diabetes do not ipso facto warrant the award of permanent and total disability benefits to a seafarer. Notably, Sec. 32-A of the POEA-SEC recognizes that a seafarer can still be employed even if he has hypertension and/or diabetes provided that he shows compliance with the prescribed maintenance medications and doctor-recommended lifestyle changes. As the company-designated physicians opined that Santos only had a Grade 12 disability, then he is only entitled to US$5,225.00 as partial disability benefit. The SC also affirmed the sickness pay of US$1,633.66 during Santos’s period of treatment.