THIRD DOCTOR REFERRAL IS NOT APPLICABLE IF THERE IS NO DEFINITIVE DISABILITY ASSESSMENT BY THE COMPANY-DESIGNATED PHYSICIAN

Acquire Mastery of HR/Labor Doctrines, Rules and Principles with Atty. Elvin’s HR Bundle Books at Discounted Rate

Third doctor referral as provided in Section 20(A)(3) of the POEA-SEC is mandatory in case there are disagreements made by the company-designated physician and the seafarer’s chosen physician as to his medical condition.

However, this requires a final and definitive assessment by the company-designated physician. Thus, the SC held in the following case:

Abundo vs. Magsaysay Maritime Corporation
G.R. No. 222348, November 20, 2019

Total and permanent disability; 120-day rule; Final and definite assessment; A partial disability assessment with advise to continue rehabilitation is mere interim and not final; Mere suggestive disability grading will not suffice as final and definitive medical assessment; Third doctor; The absence of final assessment makes the rule on third-doctor-referral inapplicable

Facts:

Petitioner Jherome G. Abundo (Abundo) was formerly employed as Able Seaman on board the vessel “Grand Celebration-D/E”. On the other hand, Magsaysay Maritime Corporation is a licensed manning agent of its principal, Grand Celebration LDA (collectively referred to as Magsaysay, et al.)

Abundo was engaged as Able Seaman for eight months on April 25, 2012. While Abundo was securing a lifeboat, a metal block snapped and hit his right forearm. He was hospitalized in Brazil. After consultation with the doctor assigned in the vessel, he was recommended for repatriation.

Abundo was medically repatriated on January 7, 2013. Upon arrival, he was referred to a company-designated physician. He was found to have an overriding fracture, fragment at the distal 3^rd shaft of the right radius.

Subsequently, Abundo underwent treatment procedure for open reduction and internal fixation with plate replacement and screws of the fractured right distal radius. After his discharge, he was then made to undergo physiotherapy to improve the function of his right arm.

On April 22, 2013, the company-designated physician advised Abundo to continue the rehabilitation and was issued an interim assessment of Grade 10 disability. Meanwhile, he sought an independent doctor, an orthopaedic surgery and traumatic flight surgeon who found that he would not be able to perform his pre-injury work because of the physical demands it entails. He was found unfit for further strenuous duties.

With the independent doctor’s findings, Abundo demanded from Magsaysay, et al. the maximum benefit under the POEA-SEC and claimed to be suffering from permanent disability. Instead of granting permanent disability benefits, Magsaysay, et al. offered US$10,075.00 an amount equivalent to Grade 10 disability.

As a result, Abundo filed a labor complaint seeking payment of sickness allowance, permanent and total disability benefits, among others.

For their part, Magsaysay, et al. argued that Abundo failed to prove that he is suffering from total and permanent disability. He failed to observe the procedure requiring referral to a third doctor to settle the conflicting findings.

LA Ruling:

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

The LA found Abundo’s disability as permanent and total based on the pieces of evidence presented. Even after an interim assessment of Grade 10 disability, he was still undergoing rehabilitation.

The LA opined that total disability does not mean absolute helplessness and that it is not the injury which is compensated but the incapacity to work resulting in the impairment of one’s earning capacity.

The LA awarded Abundo US$60,000.00 representing the maximum coverage for disability under the POEA-SEC. Undaunted, Magsaysay, et al appealed to the National Labor Relations Commission (NLRC).

NLRC Ruling:

The NLRC affirmed the LA.

The NLRC echoed the LA’s findings that Abundo was not restored to his pre-injury condition and his injury made him unable to perform his customary work as a seafarer. The NLRC ruled that while it was been held that failure to resort to a third doctor will render the company doctor’s diagnosis controlling, it is not the automatic consequence. It is merely directory and not mandatory.

Magsaysay, et al. filed a motion for reconsideration which was denied by the NLRC. Aggrieved, they filed a petition for certiorari before the Court of Appeals (CA).

CA Ruling:

The CA granted the petition.

The CA held that referral to a third doctor is mandatory. It ruled that it is the obligation of the seafarer to notify the concerned employer of his intention to settle the issue through the appointment of a third doctor. The CA upheld the assessment of Dr. Go, the company-designated physician, stating that Abundo suffers from Grade 10 disability.

Abundo moved for reconsideration which was denied by the CA. Undeterred, Abundo filed a petition before the Supreme Court (SC).

Issue/s:

Whether or not a partial disability assessment with advice to continue rehabilitation is final and definitive

Whether or not the duty of the seafarer to seek the opinion of the third doctor arises even if the company-designated physician’s assessment is not final and definitive

SC Ruling:

The SC granted the petition.

In resolving the controversy, the SC applied Section 20(A)(3) of the POEA-SEC, Article 198 [192](c)(1), Chapter VI, Title II, Book IV of the Labor Code, and the Amended Rules on Employee Compensation (AREC) implementing Title II, Book IV of the Labor Code.

The SC held that the POEA-SEC should never be read in isolation with other laws such as the provisions of the Labor Code on disability and the AREC. Article 198 [192](c)(1), Chapter VI, Title II, Book IV of the Labor Code instructs that a temporary total disability lasting continuously for more than one hundred twenty days.

In addition, Section 2(b) of Rule VII of the AREC defines disability as total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days.

The SC held that referral to a third doctor as provided in Section 20(A)(3) of the POEA-SEC is mandatory in case there are disagreements made by the company-designated physician and the seafarer’s chosen physician as to his medical condition. Citing the cases of Murillo vs. Philippine Transmarine Carriers, Inc. and Dionio vs. Trans-Global Maritime Agency, Inc., the SC declared that referral to a third doctor is mandatory, and that the seafarer’s failure to abide thereby is a breach of the POEA-SEC which makes the assessment of the company-designated physician final and binding.

However, the SC ruled that before a seafarer should be compelled to initiate referral to a third doctor, there must first be a final and categorical assessment made by the company-designated physician as to the seafarer’s disability within 120/240-day period. Otherwise, the seafarer shall be considered permanently disabled by operation of law.

Citing Sunit vs. OSM Maritime Services, Inc. et al. and Kestrel Shipping Co., Inc. vs. Munar, the SC ruled that the assessment of the company-designated physician of the seafarer’s fitness to work or permanent disability within the period of 120 or 240 days must be definite for it to be controlling in determining the medical condition of the seafarer. Citing another case, Carcedo vs. Maine Marine Philippines, Inc. the SC declared that failure of the company-designated doctor to issue a final assessment made the disability of the seafarer therein permanent and total.

In this case, the disability grading issued by the company-designated doctor was merely an interim assessment and not a final and categorical finding. If it were otherwise, the physician would not have advised Abundo to continue his rehabilitation. Citing Belchem Philippines, Inc. vs. Zafra, Jr., the SC held that mere “suggestive” disability grading will not suffice as final and definitive medical assessment.

Abundo remained incapacitated to resume sea duties even after the company-designated doctor evaluated his medical condition. This means that he had still to undergo medical treatment even after being seen by the company-designated physician. Even after the lapse of the maximum 240-day period there was still no final assessment made by the company-designated doctor as to Abundo’s disability.

With the failure to issue a final and definite assessment of Abundo’s condition within the 240-day period, Abundo was thus deemed totally and permanently disabled. It is apparent that his disability and incapacity to resume working continued for more than 240 days.

Consequently, the absence of a final assessment by the company-designated physician makes the rule onthird-doctor-referral inapplicable in the instant case. The failure to issue final assessment and disability grading within the 240-day period made Abundo’s disability total and permanent even without evaluation by a third doctor. The rule on third doctor referral is not applicable if there is no definitive disability assessment made by the company-designated physician