FAILURE OF THE SEAFARER TO GIVE INTENT TO SUBMIT HIMSELF TO THIRD PHYSICIAN NEGATES THE NEED FOR DETERMINATION BY A THIRD PHYSICIAN RENDERING FILING OF COMPLAINT PREMATURE

A third physician might be agreed upon jointly by the employer and the seafarer in case of conflicting assessments of the company-designated physician and private physician. The third physician’s decision would be final and binding on both parties.

The Court has held in TSM Shipping Phils., Inc. vs. Patiño that the non-observance of the requirement to have the conflicting assessments determined by a third physician would mean that the assessment of the company-designated physician prevails.

Maersk-Filipinas Crewing Inc. vs. Alferos
G.R. No. 216795, April 1, 2019

Permanent and total disability claim; Premature claim; Third Doctor; Failure to give notice of intent to seek the assessment of third doctor upholds the assessment made by the company-designated physician; The duty to secure the opinion of a third doctor belongs to the employee asking for disability benefits. He must actively or expressly request for it

Facts:

The Petitioners, Maersk-Filipinas Crewing Inc. and A.P. Molller A/S (Maersk, et al.), had employed respondent Edgar S. Alferos (Alferos) as an Able Seaman. They had redeployed him each time under a new contract upon being subjected to the Physical Employment Medical Examination (PEME) that always found him fit for work.

For his last employment contract, he was again hired by the Maersk, et al. as an Able Seaman on board the vessel M/S Laura Maersk for a period of six months. Upon completion of his contract, the parties mutually extended his services.

While in the performance of his duties, Alferos suddenly felt pain in his lower back and abdomen. He also experienced difficulty and pain when urinating. He reported his condition to his superior officer, who brought him to the Dulsco Medical Clinic in Dubai, which, upon medical examination, diagnosed his condition as “Dysuria, with loin pain and back pain.” However, despite treatment, his condition did not improve but became worse. He was medically repatriated and was disembarked on January 12, 2013.

The company-designated physicians referred him to an urologist. According to the medical report, Alferos complained of “pain in urination accompanied with urinary frequency and back discomfort and was diagnosed to have dysuria with loin pain and back pain; urinalysis showed red blood cells; kidney, urinary bladder and prostate gland ultrasound showed focal cortical calcification, right kidney and Grade 1 prostate hypertrophy; he was recommended to undergo CT Stonogram and was given medications.

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After several medical re-evaluations and advice to continue medications, the company-designated physician pronounced Alferos as already fit to resume sea duties as of said date inasmuch as his prostatitis had already been resolved. Maersk, et al. then made him sign a document entitled “Certificate of Fitness to Work”, with his company-designated physician as witness.

Not feeling fit to resume sea duties despite the final diagnosis by the company-designated physician, and despite having been made to sign the “Certificate of Fitness for Work,” Alferos submitted himself for examination by another physician who subsequently referred him to St. Luke’s Medical Center. At St. Luke’s he was diagnosed to be suffering from nephrolithiasis. He was then further referred to another physician for further examination, and the latter diagnosed him to be suffering with nephrolithiasis, diabetic nephropathy, osteoarthritis, lumbosacral spine radiculopathy, and benign positional vertigo. The doctor issued a medical assessment in writing declaring Alferos’s condition as rendering him physically unfit to return to work as a seafarer.

Thereafter, Alferos filed a complaint with the Arbitration Office of the National Labor Relations Commission (NLRC) to recover permanent disability compensation pursuant to the collective bargaining agreement (CBA), payment of sick wages for 120 days, moral and exemplary damages, attorney’s fees and other benefits under the law.

LA Ruling:

Labor Arbiter Enrique Flores Jr. (LA) rendered his decision granting the claim and ordering the Maersk, et al. to pay to Alferos: (1) the amount of US$60,000.00, representing permanent total disability benefit; and (2) attorney’s fees equivalent to 10% of the total award.

NLRC Ruling:

On appeal, the NLRC rendered its ruling affirming the decision of the Labor Arbiter.

Maersk, et al.’s motion for reconsideration was denied thus, they filed a petition for certiorari before the CA.

CA Ruling:

The CA promulgated the assailed decision dismissing the petition for certiorari and upholding the NLRC.

Issue/s:

Whether or not the seafarer who failed to give notice of his intent for a third physician can validly insist on an assessment different from that made by the company-designated physician

Whether or not the failure of the seafarer to give notice to employer of his intent to submit himself to a third physician for evaluation negated the need for the determination by a third physician thus, rendering his claim for disability premature

SC Ruling:

The SC found the appeal meritorious.

The SC held that under the POEA-SEC, when the seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work should be determined by the company-designated physician. However, if the physician appointed by the seafarer makes a finding contrary to that of the assessment of the company-designated physician, a third physician might be agreed upon jointly by the employer and the seafarer, and the third physician’s decision would be final and binding on both parties.

The Court has held in TSM Shipping Phils., Inc. vs. Patiño that the non-observance of the requirement to have the conflicting assessments determined by a third physician would mean that the assessment of the company-designated physician prevails.

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According to CF Sharp Crew Management, Inc. v. Taok, a seafarer may have a basis to pursue his claim for total and permanent disability benefits under any of the conditions, namely:

(a) The company-designated physician failed to issue a declaration as to his fitness to engage in sea duty or disability even after the lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability, hence, justify an. extension of the period to 240 days;

(b) 240 days had lapsed without any certification issued by the company designated physician;

(c) The company-designated physician declared that he is fit for sea duty within the 120-day or 240-day period, as the case may be, but his physician of choice and the doctor chosen under Section 20-B (3) of the PO EA-SEC are of a contrary opinion;

(d) The company-designated physician acknowledged that he is partially permanently disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well;

(e) The company-designated physician recognized that he is totally and permanently disabled but there is a dispute on the disability grading;

(f) The company-designated physician determined that his medical condition is not compensable or work-related under the POEA-SEC but his doctor-of-choice and the third doctor selected under Section 20-B(3) of the PO EA-SEC found otherwise and declared him unfit to work;

(g) The company-designated physician declared him totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and

(h) The company-designated physician declared him partially and permanently disabled within the 120-day or 240-day period but he remains incapacitated to perform his usual sea duties after the lapse of said periods.

There was no basis for holding that Alferos’s condition came under the aforementioned circumstances. Furthermore, although Alferos was not precluded from seeking a second medical opinion of his condition, the third paragraph of Section 20(B)3 of the POEA-SEC laid down the procedure to be followed when there is a disagreement between the assessments of the respective physicians of the parties, stating: “If a doctor appointed by the seafarer disagrees with the assessment (of the company-designated physician), 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 records do not indicate that the parties jointly sought the opinion of a third physician for the determination and assessment of Alferos’ disability or the absence thereof. The failure of Alferos to give notice to the Maersk, et al. of his intent to submit himself to a third physician for evaluation negated the need for the determination by a third physician. For this reason, the filing of Alferos’s claim for disability was premature.

The need for the evaluation of Alferos’s condition by the third physician arose after his physician declared him unfit for seafaring duties. He could not initiate his claim for disability solely on that basis. He should have instead set in motion the process of submitting himself to the assessment by the third physician by first serving the notice of his intent to do so on the Maersk, et al..

There was no other way to validate his claim but this. Without the notice of intent to refer his case to the third physician, Maersk, et al. could not themselves initiate the referral. Moreover, such third physician, because he would resolve the conflict between the assessments, must be jointly chosen by the parties thereafter. Unless Alferos served the notice of his intent, he could not then validly insist on an assessment different from that made by the company-designated physician.

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Citing the case of Hernandez vs. Magsaysay Maritime Corporation, the SC held that the company can insist on its disability rating even against a contrary opinion by another doctor, unless the seafarer signifies his intent to submit the disputed assessment to a third physician. The duty to secure the opinion of a third doctor belongs to the employee asking for disability benefits. He must actively or expressly request for it.

Moreover, the failure of Alferos to signify the intent to submit himself to the third physician was a direct contravention of the terms and conditions of his contract with the Maersk, et al. Such contravention disauthorized the making of the claim for the benefits.

On the basis of the foregoing, Alferos’s claim for disability benefits predicated on his physician’s assessment would be bereft of basis considering that his non-compliance with the procedure expressly provided by law led to the fit-to-work assessment by the company-designated physician becoming the controlling and only reliable medical assessment.