ASSESSMENT THAT FAILS TO EXPLAIN IN DETAIL THE PROGRESS OF SEAFARER’S TREATMENT AND THE APPROXIMATE PERIOD NEEDED TO FULLY RECOVER IS NOT FINAL AND DEFINITIVE

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

Permanent and total disability; 120-day rule; Final and definitive assessment; An assessment stating that 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” is hardly the “definite and conclusive assessment of the seafarer’s disability or fitness to return to work”; 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; Incapacity as basis of disability compensation and not the injury

Facts:

Respondents BSM Crew Service Centre Phils., Inc., Bernard Schulte Shipmanagement Ltd., and Danilo Mendoza (BSM Crew Service, et al.) employed Petitioner Jerry Bering Talaugon (Talaugon) as an oiler on board MIT Erika Schulte.

During Talaugon’s 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, Talaugon 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 a disability grading of 11.

Talaugon, 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.

According to  BSM Crew Service, et al., 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.

Thus, on October 1 7, 2014, Talaugon sued  BSM Crew Service, et al. for full disability benefits, damages, and attorney’s fees.

LA Ruling:

The Labor Arbiter (LA) ruled in favor of Talaugon.

The LA awarded Talaugon permanent total disability compensation. The labor arbiter 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.

NLRC Ruling:

On appeal, the NLRC modified the award to partial permanent disability.

The NLRC 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 ruled 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.

Issue/s:

Whether or not the findings of the company-designated physician were made within the 120-day period

Whether or not the findings stating that “the prognosis of returning to (his) sea duties is guarded” are final and definitive

SC Ruling:

The SC granted the petition.

The SC held that 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 whether the assessment was final and definitive, the SC cited Section 20(8) of POEA-SEC20 stating 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 pointed to the Medical Report dated May 15, 2014 on 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.”

According to the SC, 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.

In ruling further, the SC cited the following cases in relation to the Decision (underscoring by the author):

The case of Carcedo vs. Maine Marine Phils., Inc., where the Court ruled that the company-designated physician’s disability assessment was not definitive since the seafarer continued to require medical treatments thereafter. Considering that the doctor failed to issue a final assessment, Carcedo’s disability was declared to be permanent and total.

The case of Island Overseas Transport Corp. vs. Beja, wherein a month after the seafarer Beja’s knee operation, the company-designated physician issued Grades 10 and 13 partial disability grading of his medical condition. The Court considered these assessments as tentative because the seafarer continued his physical therapy sessions, which even went beyond 240 days. Further, the company-designated physician “did not even explain how he arrived at the partial permanent disability assessment,” nay, provided any justification for his conclusion that Beja was inflicted with Grades 10 and 13 disability.

Further, in Orient Hope Agencies Inc. vs. Jara, the Court considered that aside from the belated assessment of seafarer Jara’s injury, the medical report did not contain any definitive declaration as to his fitness to work. On the contrary, the report stated that as of his last check up, he was still complaining of left knee pain. Under the circumstances, it would be improbable to expect that by the last day of the 240-day period, Jara would have fully recovered from his injury or regained his pre-injury capacity as to be able to go back to his sea duty.

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.

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.

Indeed, given Talaugon’s persistent back pain, it  is  highly improbable for him to perform his usual tasks as oiler in any vessel, thus, resulting in his loss of earning capacity.