AN INTERIM MEDICAL ASSESSMENT IN THE NATURE OF PROGNOSIS FAILS TO ESTABLISH THAT THE DISABILITY IS NOT PERMANENT AND TOTAL

Moreover, while the company-designated physician’s assessment was issued within the 120-day period, after the seafarer’s repatriation, it could not have been a final and definite assessment as mandated by law, considering the language of the assessment showing that the disability grading was merely interim, as it was declared that “prognosis is guarded” and “if patient is entitled to a disability, his suggested disability grading is Grade 8 -loss of 2/3 lifting power of the trunk.”

Consequently, the company-designated physician’s assessment should not prevail and must be completely disregarded, since it was merely an “interim” assessment. Thus, the SC held as follows:

Ampo-On vs. Reinier Pacific International Shipping, Inc.
G.R. No. 240614, June 10, 2019

Medical report; Definite and complete medical assessment; An interim medical assessment which is a mere prognosis should be disregarded in determining physical disability; Initial prognosis of seafarer’s condition for the time being, which does not fully assess his condition and cannot provide sufficient basis for an award of disability benefits in his favor; Referral and compliance to a third doctor requirement; Compliance with the third-doctor referral requirement is rendered inapplicable absent a final assessment from the company-designated physician; The seafarer has nothing to contest and the law steps in to conclusively characterize his disability as total and permanent; Accident; Unintended and unforeseen injurious occurrence could qualify as an accident; Suppressed evidence

Facts:

On February 11, 2014, Petitioner Danille G. Ampo-On (Ampo-On) was employed as an Able Seaman by respondent Reinier Pacific International Shipping, Inc. for and on behalf of its principal Neptune Shipmanagement Services Pte./NOL Liner (Pte. ), Ltd. (collectively as Reinier, et al.), on board M/V APL Barcelona, under an eight (8)-month contract. After undergoing the required pre-employment medical examination (PEME), Ampo-On was declared fit for sea duty, and thus, boarded the vessel.

One day, while doing sanding works, Ampo-On heard a snap and crunching sound in his back followed by tremendous pain. Upon reaching the port of Taiwan he was sent to the hospital, where he was initially diagnosed to be suffering from L3-L4 Spondylolisthesis and L3 Pars Fracture. Consequently, he was repatriated on October 23, 2014 and referred to the company-designated physician, who performed several tests on him, advised him to undergo physical therapy, and even suggested back surgery.

Eventually, on February 6, 2015, the company-designated physician issued a medical report, stating, inter alia, that “fitness to work is unlikely to be given within his 120 days of treatment” and that “if patient is entitled to disability, his suggested disability grading is Grade 8 – loss of 2/3 lifting power of the trunk,” Ampo-On consulted his independent physician, Dr. Manuel Fidel M. Magtira (Dr. Magtira) who observed that the former was permanently disabled and unfit to work.

Thus, claiming that his condition rendered him incapacitated to work as a seafarer for more than 120 days, Ampo-On filed a complaint against Reinier, et al. before the National Conciliation and Mediation Board (NCMB) for the payment of total and permanent disability benefits in the amount of US$120,000.00 as per the CBA, moral, exemplary, and compensatory damages, and attorney’s fees.

For their part, Reinier, et al. denied Ampo-On’s monetary claims, contending that Ampo-On’s condition was not work-related and was not an accidental injury, but merely a manifestation of an illness, which was not compensable under the Philippine Overseas Employment Administration -Standard Employment Contract (POEA-SEC) or the CBA. Moreover, Reinier, et al. pointed out that Ampo-On committed notorious negligence, since the latter refused surgery as suggested by the company-designated physician, despite the fact that the expenses thereof would be shouldered by the former.

NCMB Ruling:

The NCMB ruled in favor of Ampo-On, and accordingly, ordered Reinier, et al. to pay the claims.

Atty. Elvin’s new work, The Labor Code of the Philippines

The NCMB held that Ampo-On’s back injury was sustained in the course of performing his duties as an Able Seaman while exerting force with his upper extremities and hence, work-related. Besides, the company-designated physician failed to issue a report or opinion to the effect that the medical condition was not work-related.

Moreover, the NCMB observed that the event so described, wherein Ampo-On suffered tremendous pain immediately when he heard a snap and crunching sound on his back during exertion, falls within the definition of accidental injury. On this score, it further noted that page three (3) of the October 21, 2014 Medical Report Form -which appears to have been suppressed by Reinier, et al. as the same was not included in its evidence – discloses that the certifying doctor encircled the text “Yes” in response to the question “Is the illness due to an accident.”

Hence, the NCMB concluded that Ampo-On is entitled to maximum disability compensation pursuant to the CBA. Dissatisfied, Reinier, et al. moved for reconsideration but it was denied. Hence, the matter was elevated to the CA.

CA Ruling:

The CA set aside the NCMB’s ruling and held that Ampo-On was only entitled to Grade 8 disability benefits under the POEA-SEC.

Essentially, the CA gave more credence to the findings of the company-designated physician that Ampo-Ons’ disability was “Grade 8 -loss of 2/3 lifting power of the trunk” considering that its assessment contained in the February 6, 2015 medical report was arrived at after examining Ampo-On thoroughly, and after requiring him to undergo a series of medical tests, physical therapy, and medication, as evidenced by six (6) medical reports. On the other hand, the conclusion of Ampo-On’s independent physician, Dr. Magtira, that Ampo-On was unfit for sea duty, was made without proof of the medical procedures, examinations, or tests, which would form the basis thereof.

Undaunted, Ampo-On moved for reconsideration but was denied. Hence, the petition before the SC.

Issue/s:

Whether or not an interim medical assessment within 120-day period, without any indication of the need for further treatment/rehabilitation or medication, should be disregarded in determining the physical disability of the seafarer

Whether or not referral to a third doctor is required when although there was a private physician finding but the company-designated physician’s finding is mere interim

Whether or not an unanticipated injury in the workplace can be considered accident

Whether or not a work activity that normally does not cause injury but injured the seafarer was unintended and unforeseen occurrence that could qualify as an accident

SC Ruling:

The SC found the petition meritorious.

Upon finding that the seafarer suffers a work-related injury or illness, the employer is obligated to refer the former to a company-designated physician, who has the responsibility to arrive at a definite assessment of the former’s fitness or degree of disability within a period of 120 days from repatriation. This period may be extended up to a maximum of 240 days, if the seafarer requires further medical treatment, subject to the right of the employer to declare within this extended period that a permanent partial or total disability already exists.

The responsibility of the company-designated physician to arrive at a definite assessment within the prescribed periods necessitates that the perceived disability rating has been properly established and inscribed in a valid and timely medical report. To be conclusive and to give proper disability benefits to the seafarer, this assessment must be complete and definite; otherwise, the medical report shall be set aside and the disability grading contained therein shall be ignored.

As case law holds, a final and definite disability assessment is necessary in order to truly reflect the true extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such.

Failure of the company-designated physician to arrive at a definite assessment of the seafarer’s fitness to work or permanent disability within the prescribed periods and if the seafarer’s medical condition remains unresolved, the law steps in to consider the latter’s disability as total and permanent.

In this case, records reveal that Ampo-On sustained a back injury while doing sanding works as an Able Seaman during his employment on board Reinier, et al.’s vessel. For Reinier, et al.’s part, there appears to be no categorical assessment from the company-designated physician that Ampo-On’s injury was not work-related, as the former even suggested a partial disability grading. Clearly, these facts negate Reinier, et al.’s claim that the injury did not arise out of and in the course of employment, and hence, must be deemed work-related.

Moreover, while the company-designated physician’s assessment was issued within the 120-day period, after Ampo-On’s repatriation, it could not have been a final and definite assessment as mandated by law, considering the language of the assessment showing that the disability grading was merely interim, as it was declared that “prognosis is guarded” and “if patient is entitled to a disability, his suggested disability grading is Grade 8 -loss of 2/3 lifting power of the trunk.” Notably, the company-designated physician even informed Ampo-On that “fitness to work is unlikely to be given within his 120 days of treatment.”

Consequently, the company-designated physician’s assessment should not prevail and must be completely disregarded, since it was merely an “interim” assessment. Being an interim disability grading, the declaration was merely an initial prognosis of Ampo-On’s condition for the time being, which does not fully assess his condition and cannot provide sufficient basis for an award of disability benefits in his favor. Moreover, notwithstanding such interim assessment and declaration of unfitness to work, the company-designated physician failed to indicate the need for further treatment/rehabilitation or medication, and provide an estimated period of treatment td justify the extension of the 120-day period. Evidently, without the required final and definite assessment declaring Ampo-On fit to resume work or the degree of his disability, the characterization of the latter’s condition after the lapse of the 120-day period as total and permanent ensued by operation of law.

Besides, Ampo-On’s injury persisted despite the company designated-physician’s declaration of partial disability Grade 8. Thus, applying Article 198 (c) (1) of the Labor Code, Ampo-On’s disability should be deemed total and permanent. In this regard, it must be emphasized that in the determination of 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 injuries he sustained. A permanent partial disability 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.

Total disability does not require that the employee be completely disabled or totally paralyzed. In disability compensation, it is not the injury which is compensated, but it is the incapacity to work resulting in the impairment of one’s earning capacity.

Corollarily, the compliance with the third-doctor referral provision of the 2010 PO EA-SEC is rendered inapplicable, considering that absent a final assessment from the company-designated physician, the seafarer has nothing to contest and the law steps in to conclusively characterize his disability as total and permanent.

An accident has been defined as an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated; an unforeseen and injurious occurrence not attributable to mistake, negligence, neglect or misconduct; that which happens by chance or fortuitously, without intention and design, and which is unexpected, unusual, and unforeseen.

Here, Ampo-On was performing his duty, i.e., sanding works, as an Able Seaman when he heard a snap and crunching sound in his back immediately followed by tremendous pain. He could not have anticipated such unusual and unexpected snap in his back, since he merely exerted normal force with his upper extremities and such exertion does not at all times cause back injury. Thus, for being an unintended and unforeseen injurious occurrence, the sudden snap on Ampo-On’s back could qualify as an accident.

Moreover, as aptly observed by the NCMB, Reinier, et al. did not include in its evidence page three (3) of the Medical Report Form, which reveals that the certifying doctor encircled the text “Yes” in response to the question “Is the illness due to an accident.” Thus, it appears that they have suppressed such evidence, which would have been an admission contained in a pleading that is conclusive against the pleader, confirming that Ampo-On indeed suffered an accident.