SEAFARER MUST NOTIFY THE AGENCY IN WRITING IF PHYSICALLY INCAPACITATED TO REPORT FOR SCHEDULED MEDICAL EXAMINATION

In the case of Marlow Navigation vs. The Heirs of Antonio Beato (Antonio), G.R. No. 233897, March 9, 2022  the seafarer (Antonio) suffered an illness during his employment contract.

He was referred to Dr. Orlino F. Hosaka, Jr. (Dr. Hosaka) of the Notre Dame Medico-Dental Clinic, the company-designated physician, who, in tum, referred him to the company specialists, particularly a pulmonologist and a  cardiologist. Antonio’s x-ray results showed that he has negative infiltrates. He was diagnosed with  hypertension secondary to upper respiratory tract infection.

He was advised by Dr. Hosaka to return for further treatment and examination on January 8, 2013, but he did not. Meanwhile, on December 14, 2012, Antonio went home to Aldan and was confined at the St. Gabriel Clinic from December 21 to 22, 2012 where he was diagnosed with functional dyspepsia. He was again confined in the same clinic from January 24, 2013 to February 5, 2013 where he was diagnosed with pancreatic cancer.

After his discharge, Antonio was bedridden at home until he died on April 6, 2013. His death certificate indicated that he died due to cardio respiratory failure with underlying cause of pancreatic cancer.

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Thus, his surviving heirs, through his wife, Jonabel D. Beato, filed a complaint for death benefits, payment for burial expenses, reimbursement of medical expenses, airfare expense, damages and attorney’s fees, against Marlow on the ground that the cause of his death, pancreatic cancer, is a work-related illness.

Among several other issues, whether or not he is entitled to his disability benefit.

The applicable provisions of Section 20-A read in part:

SECTION 20. COMPENSATION AND BENEFITS A. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows: l. XXX 2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of his disability has been established by the company-designated physician.

3. XXX xxxx For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. In the course of the treatment, the seafarer shall also report regularly to the company-designated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer.

Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. If a doctor appointed by the seafarer disagrees with the assessment, 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.

4. Those illnesses not listed in Section 32 of this Contract are disputably presumed as work-related.
5. XXX
6. In case of permanent total or partial disability of the seafarer caused by either injury or illness, the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of this Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and rules of compensation applicable at the time the illness or disease was contracted.”

Section 20-A of the 2010 POEA-SEC should be read together with Section 32-A of the same Contract which enumerates the various diseases deemed to be occupational and thus, compensable. In short, in order for a seafarer to be entitled to the compensation and benefits under Section 20-A, the disability causing the illness, injury or death must be one of those listed under Section 32.

As regards those diseases not otherwise considered an occupational disease under the POEA-SEC, the law recognizes that these illnesses may nevertheless cause or aggravate the seafarer’s working conditions. Hence, the POEA-SEC provides for a disputable presumption of work-relatedness for non-POEA-SEC-listed occupational diseases and the resulting illness, injury or death that the seafarer may have suffered during the term of his employment contract.26 The non-inclusion of the disease in the list of compensable diseases does not mean absolute exclusion from disability benefits. However, the disputable presumption does not also signify an automatic grant of compensation and/or benefits claim; the seafarer must still prove his entitlement to disability benefits by substantial evidence of his illness’ work-relatedness.

Thus, to be entitled to benefits under Section 20-A, the seafarer must show that (1) he suffered an illness; (2) during the term of his employment contract; (3) he complied with the procedures prescribed under Section 20-A of the applicable POEA-SEC; (4) his illness is one of the enumerated occupational diseases or that his illness or injury is otherwise work-related; and (5) he 26 Jebsen Maritime, Inc., v. Ravena, supra note 24 at 388. 21 Id.

Decision 8 G.R. No. 233897 complied with the four conditions enumerated under Section 32-A of the POEA-SEC for an occupational disease or a disputably-presumed work-related disease to be compensable, which are as follows:

1. The seafarer’s work must involve the risks described herein;
2. The disease was contracted as a result of the seafarer’s exposure to the described risks;
3. The disease was contracted within a period of exposure and under such other factors necessary to contract it; and
4. There was no notorious negligence on the part of the seafarer.

In this case, the heirs established that Antonio suffered an illness during the term of his employment contract. However, he failed to comply with the procedures prescribed under the POEA-SEC, particularly Section 20-A(3), paragraph 3, which requires the seafarer must submit himself to a post-employment medical examination within three days upon his return.

Further, he must report regularly to the company-designated physician specifically on the dates prescribed by the latter. When the seafarer is  physically incapacitated to do so, he must submit a written notice to the agency. Otherwise, his failure to do so will result in forfeiture of his right to claim his benefits.

Antonio was repatriated on December 1, 2012. He went to Dr. Hosaka of the Notre Dame Medico-Dental Clinic on December 5, 13 and 18, 2012 who diagnosed him with hypertension secondary to upper respiratory tract infection.29 When he was asked to report back on January 8, 2013 for a follow-up check-up, not only did Antonio fail to do so, he also failed to notify in writing Marlow or Dr. Hosaka that he had already gone home to Aklan.

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The only defense the heirs gave was that Antonio’s worsening condition prevented him from doing so.

The law is clear, however, that all that Antonio or his family had to do was make a written notification of his hospitalization, or his physical incapacity to report back to the company-designated physician. This they did not do.

Paragraph 4 of the same section further states that if the doctor selected by the seafarer disagrees with the assessment of the company-designated physician, the parties may jointly appoint a third doctor whose decision shall be final and binding on both parties.

When Antonio failed to report back to Dr. Hosaka on January 8, 2013, it was because he already went home to Aklan and had himself checked by another physician in a different clinic, St. Gabrielle Medical Clinic, on December 20 to 21, 2012. There, he was diagnosed with functional dyspepsia. A month later, he was again confined in the same clinic and was subsequently diagnosed with pancreatic cancer.

The records reveal an indisputable disagreement between the findings of the company-designated physician, on one hand, and the physician Antonio approached in Aldan, on the other hand. Dr. Hosaka even claims that Antonio never made any reference to any other symptom or condition relating to pancreatic cancer because otherwise, he (Dr. Hosaka) would have reported it to Marlow.

At this point, it bears stressing that the employee seeking disability benefits carries the responsibility of securing the opinion of a  third doctor. In fact, the employee or the seafarer must actively or expressly request for it. The referral to a third doctor has been recognized by this Court to be a  mandatory procedure. Failure to comply therewith is considered a  breach of the POEA-SEC, and renders the assessment by the company-designated physician binding on the parties.

Secondly, pancreatic cancer is not an occupational disease. Section 32-A of the POEA-SEC only considers two types of cancer as compensable occupational diseases: (l) cancer of the epithelial of the bladder (papilloma of the bladder); and (2) cancer, epithellomatous or ulceration of the skin of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound product or residue of these substances.

Although the CA afforded Antonio the benefit of the legal presumption of work-relatedness, this Court disagrees and holds that Antonio or his heirs failed to prove the work-relatedness of his pancreatic cancer. Case law has held time and time again that for a  disease not included in the list of compensable diseases to be compensable, the seafarer still has to establish, by substantial evidence that his illness is or was work-related.

As stated, the disputable presumption does not amount to an automatic grant of compensation.35 In this case, Antonio failed to prove that his illness is compensable as he failed to satisfy all the conditions under Section 32-A.