MEDICAL ASSESSMENT THAT IS NOT FINAL AND DEFINITIVE RENDERS SEAFARER’S DISABILITY TOTAL AND PERMANENT

Medical assessment or report of a seafarer’s disability must be complete and definite. 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.

Otherwise, the corresponding disability benefits awarded might not be commensurate with the prolonged effects of the injuries suffered.

Thus, the SC held in the following case:

Talaugon vs. BSM Crew Service Centre Phils., Inc., et al.
G.R. No. 227934, September 4, 2019

Final and definitive assessment; Without a final and definitive assessment from the company-designated physician on seafarer’s disability, the same is deemed permanent and total by operation of law; Total disability; Permanent disability; Distinction between total and permanent disability

Facts:

Petitioner Jerry Bering Talaugon alleged that he was hired as an oiler on board MIT Erika Schulte. During his employment, he felt dizzy and nauseous. His lower abdomen was painful. He got hospitalized in Saudi Arabia and diagnosed with “Renal Colic Lumbago post Zoster Neuralgia.” He was given pain medications and advised to be repatriated for further treatment.

On January 18, 2014, he returned to the country and thereafter consulted with company-designated physician Dr. Richard Olalia. The latter diagnosed him with “Hyperthesia, Ruled out Hansen’s Disease, L4-L5 Disc Protrusion, Disc Dessication” and advised therefor physical therapy.

On April 3, 2014, another company-designated physician Dr. Godfrey Robeniol found a tumor in his spinal cord. A few days later, he underwent surgery for tumor removal. After undergoing surgery and physical therapy, he went back to, yet, another company-designated physician Dr. Gilbert Rafioa. The latter observed that he was still suffering lower back pain probably due to his lumbar spondylosis.

Dr. Rafioa then declared that his illness was not work related. Dr. Rafioa, nonetheless, offered to give him adisability grading of 11. He, thereafter, sought the opinion of his personal physician, Dr. Venancio Garduce who concluded that due to the weakness of his upper extremities, it was impossible for him to be employed again as seafarer. Dr. Garduce opined he was entitled to a Grade 3 disability rating.

For their part, respondents BSM Crew, et al. alleged that while on board, Talaugon noted blisters on his right lumbar region accompanied by fever, headache, and body pain. The blisters, however, healed without medication. Upon Talaugon’s repatriation, company designated Dr. Robert Lim found him suffering from Hyposthetics (nerve damage).

Talaugon underwent an MRI which showed L4-L5 disc protrusion and disc dessication. Since his back pain persisted, another MRI was done where a tumor was discovered in his spine. In April 25 2014, he had the tumor excised. On May 15, 2014, he was seen by Dr. Mylene Cruz-Balbon who noted that while he continued with his rehabilitation, “the prognosis of returning to (his) sea duties is guarded.”

Yet another company physician, Dr. William Chuasuan, Jr. found that Talaugon was suffering from a grade 11 disability for slight rigidity or 1 /3 loss of motion or lifting power.

On October 17, 2014, Talaugon sued respondents BSM Crew Service Centre Phils., Inc., Bernard Schulte Shipmanagement Ltd., and Danilo Mendoza (BSM Crew, et al.) for full disability benefits, damages, and attorney’s fees.

LA Ruling:

The Labor Arbiter (LA) awarded Talaugon permanent total disability compensation.

The LA ruled that the company-designated physicians failed to make a final assessment of Talaugon’s condition within 120/240 window period. Talaugon’s disability had, therefore, become total and permanent.

BSM Crew, et al. appealed to the NLRC.

NLRC Ruling:

The NLRC modified the award to partial permanent disability.

The It stressed that Dr. Chuasuan, Jr.’s assessment of Talaugon’s condition equivalent to grade 11 disability was made within the 120-day period from the latter’s repatriation on January 17, 2014. Even arguing that his treatment lasted beyond 120 days, the extended period was justified because Talaugon needed further medical treatment.

CA Ruling:

The CA affirmed the NLRC Decision.

The CA noted that from the time Talaugon got repatriated on January 18, 2014 up to the time Dr. Chuasuan, Jr. recommended a grade 11 disability on May 15, 2014, only 117 days had elapsed. Also, Dr. Chuasuan, Jr. had actually given Talaugon a final assessment within the 120-day period, hence, the latter cannot be deemed totally and permanently disabled.

Talaugon’s motion for reconsideration was denied. Thus, the petition before the SC.

Issue/s:

Whether or not an assessment that does not explain in detail the progress of seafarer’s treatment and the approximate period needed for him to fully recover is final and definitive

Whether or not without a final and definitive assessment from the company-designated physician the seafarer’s disability is deemed permanent and total by operation of law

SC Ruling:

The SC granted the petition.

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The SC held that two (2) requisites must concur for a determination of a seafarer’s condition: 1) an assessment must be issued within the 120/240 window, and 2) the assessment must be final and definitive.

The company-designated physician made an assessment on Talaugon’s illness within the 120-day period. Records show that Dr. Chuasuan, Jr. declared Talaugon’s disability rating as Grade 11 on May 15, 2014 or 117th day since he was evaluated and had been undergoing continuous medical treatment.

As to the question whether the assessment was final and definitive, the SC referred to Section 20(8) of POEA-SEC20. It provides that provides that it is the primary responsibility of a company-designated physician to determine the disability grading or fitness to work of seafarers.

To be conclusive, however, company-designated physicians’ medical assessments or reports must be complete and definite. 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. Otherwise, the corresponding disability benefits awarded might not be commensurate with the prolonged effects of the injuries suffered.

The SC noted that here, the Medical Report dated May 15, 2014 contained the following observations: “the prognosis of returning to (his) sea duties is guarded” and “If patient is entitled to a disability, his suggested disability grading is Grade 11 -slight rigidity or 1/3 loss of motion of lifting power of the trunk.”

This is hardly the “definite and conclusive assessment of the seafarer’s disability or fitness to return to work” required by law from the company-designated physician. For there was nothing on record showing that the company designated physician explained in detail the progress of Talaugon’s treatment and the approximate period needed for him to fully recover.

Consequently, without a final and definitive assessment from the company-designated physician on Talaugon’s disability, the same is deemed permanent and total by operation of law.

At any rate, in disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity. Total disability refers to an employee’s inability to perform his or her usual work. It does not require total paralysis or complete helplessness.

Permanent disability, on the other hand, is a  worker’s inability to perform his or her job for more than 120 days, or 240 days if the seafarer required further medical attention justifying the extension of the temporary total disability period, regardless of whether or not he loses the use of any part of his body.