Seafarer’s failure to disclose his lumbar problem is fatal to his cause. Given that the seafarer failed to bring to the attention of the company-designated physician his back pains thereby precluding the latter from assessing whether the same is work-related or not, the seafarer is deemed not to have undergone the required post-employment medical examination contemplated under the POEA-SEC relative to his back pains for purposes of claiming compensation therefor.
Thus, the SC held in the following case:
Falcon Maritime and Allied Services, Inc. vs. Pangasian
G.R. No. 223295, March 13, 2019
Post-employment examination (POME); Failure to declare in the POME illness subject of disability claim amounts to non-compliance with the POME requirement; Burden of proof
From 2002 to 2012, Falcon Maritime and Allied Services, Inc. (Falcon Maritime), Yokohama Marine and Merchant Corporation (Yokohama), and/or Florida Z. Jose (Jose) [collectively, the Falcon, et al.], continuously hired Angelito B. Pangasian (Pangasian) as Chief Cook under various contracts.
After undergoing the requisite pre-employment medical examination and having been declared “fit for sea duty, without restrictions,” Pangasian was rehired by the Falcon Maritime, et al. to resume his former position as Chief Cook on board the reefer ship MIV New Hayatsuki.
Aside from the normal duties of a Chief Cook, Pangasian alleged that he also helped in the loading and unloading of tons of cargoes of skipjack, tuna fish and big squid from numerous fishing boats in the high seas of the Pacific Ocean and then unloading them at different ports of destinations. While the M/V New Hayatsuki was sailing on the Pacific Ocean within the State of Peru in West South America, Pangasian noticed swelling and felt pain in his testicles after lifting, carrying and loading heavy sacks of big squid into the ship and performing chamber cleaning works. Pangasian informed his Chief Officer about this and he was given antibiotics for temporary relief.
In yet another course of loading heavy sacks full of skipjack, tuna fish and big squid into the ship, Pangasian averred that he accidentally slipped and lost his balance. Although he felt a crack at his lower back, he did not make much of it given that the pain was tolerable at that time. He continued with his task of loading the cargoes together with the other crewmembers until the reefer ship was fully loaded and set sail for Bangkok, Thailand where the cargoes will be unloaded.
When they reached the port of Bangkok, Thailand on May 18, 2012, Pangasian was surprised when the ship captain, instead of referring him to a port doctor, told him that he will be repatriated and that his replacement was already waiting to board the reefer ship. Thus, Pangasian claimed that he just asked Captain Yamamoto for a medical referral upon his arrival in the Philippines. Pangasian left Bangkok, Thailand on May 18, 2012 and arrived in the Philippines on the same day. Without wasting time, he immediately went to Falcon Maritime, the local manning agency, and personally delivered Captain Yamamoto’s referral letter to petitioner Jose, who, in tum, referred him to NGC Medical Specialist Clinic, Inc.
Pangasian was examined by Dr. Paul C. Comising (Dr. Comising), the company-designated physician, and was diagnosed with varicocoele, bilateral. He underwent Inguinoscrotal Ultrasound with Color Doppler at the University Physicians Medical Center. Pangasian underwent various tests such as CBC, BUN, creatinine, cholesterol, LDL, SGPT, SGOT, urinalysis and abdominal ultrasound, all of which yielded normal results. However, his inguinoscrotal ultrasound showed varicocoele, bilateral. Thus, Dr. Comising recommended a procedure called varicocoelectomy, bilateral. However, no examination was conducted with regard to the back pains that he allegedly experienced.
Pangasian underwent varicocoelectomy, bilateral at the Manila Doctor’s Hospital. Dr. Comising noted that there was minimal tolerable pain over the operative wounds which were healing well. On his follow-up check-up, the doctor observed that there was decreasing pain over the operative wounds. Dr. Comising noted that the pain Pangasian was feeling in the operative wounds has resoved and the wounds have healed well. As such, Pangasian was declared fit to work.
Doubtful of his fit to work assessment, Pangasian wrote Falcon Maritime, et al., through Jose, immediately the following day informing them that despite his operation and the said assessment, he still continues to feel pain on his surgical wound and experience numbness on the site of operation. He also feels pain on his spine. He, thus, asked that he be reevaluated and Magnetic Resonance Imaging (MRI) be performed on him to determine his present state. He also asked for illness allowance. Since he did not get any response on his requests from the Falcon Maritime, et al. and anxious to know the real cause of his lower back pains, Pangasian decided to undergo MRI of his lumbo-sacral spines at the BDM MRI Center, Inc.
Pangasian consulted Dr. Omar T. Cortes (Dr. Cortes), Chief of Urology Section, Department of Surgery, Armed Forces of the Philippines Medical Center (AFPMC) for a second opinion. In a Certification issued, Dr. Cortes opined that the present clinical status and health problem of the Pangasian may have been brought about by strenuous physical activities and that the condition of his spine poses a serious health problem which requires immediate spine surgical intervention. Pangasian’s inguinal problem may spontaneously resolve in a year’s time. However, pending the needed surgery, the condition of his spine may worsen and become irreversible, thereby incapacitating him physically permanently.
Pangasian consulted an independent orthopedic specialist, Dr. Manuel Fidel M. Magtira (Dr. Magtira) of the Department of Orthopaedic Surgery & Traumatology, AFPMC for an assessment of his lumbar injury based on the result of his MRI. In the Medical Report Dr. Magtira declared Pangasian totally and permanently disabled with Grade 1 Impediment based on the POEA contract.
The Panel of Voluntary Arbitrators (PVA) rendered a Decision ordering Falcon Maritime, et al. solidarily liable for the disability benefits of Pangasian.
It held that Pangasian was in perfect health condition before he boarded Falcon Maritime, et al.’s reefer ship as shown by the result of his pre-employment medical examination. However, prior to his disembarkation, Pangasian complained of testicular pains, swelling, and lower back pains. The series of medical tests he went through revealed that he was suffering from multiple disabilities.
The Panel rejected the claim of the Falcon Maritime, et al. that Pangasian’s back pains is not work-related because he did not complain or mention it even to the company-designated physician when he was getting treated for his varicocoele, bilateral since Pangasian was able to sufficiently explain the absence of any report on his back pains.
The detailed, comprehensive, extensive and medically-backed up evaluation and assessment of Pangasian’s doctor must prevail over the unsupported fit-to-work declaration of the company-designated physician. Falcon Maritime, et al. moved for reconsideration but the same was denied by the Panel.
The CA rendered a Decision affirming with modification the Panel’s Decision.
Like the Panel, the CA held that Pangasian was able to establish the work connection of his multiple disabilities to his daily duties as Chief Cook on board MIV New Hayatsuki taking into account the nature of his work, the daily working conditions while on sea duty and his additional strenuous activities of pushing, pulling, lifting, carrying, loading and unloading of heavy materials, provisions and cargoes. Since his condition was shown to be work-related, the same is compensable.
According to the CA, while it may be true that Pangasian was already operated on to address his varicocoele, bilateral and was financially assisted by the Falcon Maritime, et al. in his operation, Falcon Maritime, et al. still remained liable to the Pangasian because he still continues to suffer numbing pain on his back, cannot resume his sea duties, is unable to perform tasks producing stress on his back and is unable to perform even his customary work.
The CA also found not worthy of credence the fit-to-work assessment of Pangasian by the company-designated physician in light of the opposing medical opinions of Drs. Cortes and Magtira which were supported not only by the present state of the Pangasian, but also by diagnostic tests and procedures and reasonable findings.
The appellate court also took into account that Pangasian had been working for the Falcon Maritime, et al. for almost a decade. Since Pangasian was unfit to work and unable to resume work at his previous occupation and in any capacity, and was unable to perform his job as a Chief Cook for more than 120 days, the CA held that Pangasian was permanently and totally disabled and was properly assessed to be suffering from a Grade 1 disability. Falcon Maritime, et al. moved for reconsideration, but the CA denied it.
Hence, the petition before the SC.
Whether or not there was compliance with the post-examination requirement when the seafarer claims disability related to back pain which was not the ailment referred to the physician
The SC reversed and set aside the interrelated Decision and Resolution of the CA.
The SC held that for disability to be compensable under the 2010 PO EA-SEC, three elements must concur: (1) the seafarer must have submitted to a mandatory post-employment medical examination; (2) the injury or illness must be work-related; and (3) the work-related injury or illness must have existed during the term of the seafarer’s employment contract.
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The post-employment medical examination has two requisites: (1) it is done by a company-designated physician; and (2) within three working days upon the seafarer’s return. Failure to comply with such requirement results in the forfeiture of the seafarer’s claim for disability benefits.
There are, however, exceptions to the rule: (1) when the seafarer is incapacitated to report to the employer upon his repatriation; and (2) when the employer inadvertently or deliberately refused to submit the seafarer to a post-employment medical examination by a company-designated physician.
There is no denying that Pangasian submitted himself to post-employment medical examination within the required period. However, what is peculiar in this case is that his examination was confined only to the pain and swelling in his testicles as had been mentioned in the doctor’s referral, as well as for abdominal pain that he informed the doctor he had been experiencing on and off. Pangasian claimed that he brought to the attention of the company-designated physician his back pains but the company-designated physician refused to examine him for such condition as it was not the ailment referred to him. The Panel believed the Pangasian.
A close scrutiny of the records reveals that the findings of the Panel is not supported by the evidence on record. The records would show that the explanation alluded to by the Panel is based on the Reply filed by the Pangasian before it. The problem is that the Panel believed Pangasian’s word hook, line, and sinker even if the same contradicts Pangasian’s very own letter.
Pangasian’s letter shows that there is no truth that the ship captain failed to include his back pains in the doctor’s referral and that because he was in a state of shock and disbelief upon learning that he will be immediately repatriated that he failed to notice such omission. The truth of the matter was that his back pains was not included in the referral precisely because his written request only asked for a referral for his testicular pain. If Pangasian had truly been experiencing continuing back pains while he was still on board the vessel, then it stands to reason that Pangasian’s written request for medical referral would not only be for his testicular pain but would naturally include his back pains, especially so when he claimed that the same had become unbearable.
Moreover, Pangasian’s contention that the company-designated physician refused to examine and treat him for his back pains because it was not included in the referral is not worthy of belief. Aside from the pain and swelling in his testicles, Pangasian’s abdominal pain was likewise taken into account when the company-designated physician examined the condition of the Pangasian following his repatriation.
The foregoing shows that contrary to the contention of the Pangasian, the company-designated physician would not have left undiagnosed and untreated an illness or injury that was brought to his attention, with or without a referral. Otherwise, the post-employment medical examination of the Pangasian would have only been confined to his testicular pain, the only ailment referred to the company-designated physician, and would not include his abdominal pain. Such was not the case here.
Pangasian’s failure to disclose his lumbar problem is fatal to his cause. Given that the Pangasian failed to bring to the attention of the company-designated physician his back pains thereby precluding the latter from assessing whether the same is work-related or not, the Pangasian is deemed not to have undergone the required post-employment medical examination contemplated under the POEA-SEC relative to his back pains for purposes of claiming compensation therefor. This is not without rationale basis.
The High Court has consistently held that that the three-day mandatory reporting requirement must be strictly observed since within three days from repatriation, it would be fairly manageable for the company-designated physician to identify whether the illness or injury was contracted during the term of the seafarer’s employment or that his working conditions increased the risk of contracting the ailment.
Moreover, the post-employment medical examination within three days from arrival is required to ascertain the seafarer’s physical condition, since to ignore the rule would set a precedent with negative repercussions because it would open the floodgates to seafarers claiming disability benefits that are not work-related or which arise after the employment. It would certainly be unfair to the employer who would have difficulty determining the cause of a claimant’s illness considering the passage of time. In such a case, the employer would have no protection against unrelated claims. Therefore, it is the company-designated physician who must proclaim that the seafarer suffered a permanent disability, whether total or partial, due to either illness or injury, during the term of the latter’s employment.
Unfortunately, in this case, the company-designated physician had no opportunity to assess the back pains of the Pangasian since, to emphasize, he made no mention of such back pains to the company-designated physician during his post-employment medical examination. To hold the Falcon Maritime, et al. liable for disability benefits when they were robbed of the opportunity to determine the work relation of the injury now being complained of by the Pangasian, a right guaranteed by the POEA-SEC, would be the height of injustice.
It is true that the POEA-SEC is designed primarily for the protection and benefit of Filipino seafarers in the pursuit of their employment on board ocean-going vessels and its provisions should be construed and applied fairly, reasonably, and liberally in favor or for the benefit of the seafarer and his dependents. However, one who claims entitlement to the benefits provided by law should not only comply with the procedural requirements of law, but must also establish his right to the benefits by substantial evidence. The burden, therefore, rests on the Pangasian to show that he suffered or contracted his injury while still employed as a seafarer, which resulted in his permanent disability.
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Regrettably, Pangasian failed to discharge this burden. Aside from his bare allegation that he experienced back pains during the term of his employment contract, he presented no other evidence to substantiate his claim. To reiterate, when he underwent post-employment medical examination, he did not call the attention of the company-designated physician to his back pains. In fact, when he was asked if he was experiencing numbness or weakness in his body or difficulty with ambulation, he answered in the negative. On record, he informed the Falcon Maritime, et al. about his lumbar problem only three months after he was repatriated. Thus, the reasonable conclusion is that at the time of his repatriation, Pangasian was not suffering from any back pains requiring any medical assistance.