SEAFARER MUST INITIATE REFERRAL TO THE THIRD DOCTOR

The conflicting findings called for the referral to a third doctor jointly agreed upon by the parties and whose findings shall be final and binding upon them. The initiative for referral to a third doctor should come from the employee, i.e., Reyes himself. He must actively or expressly request for it.

Thus, the SC held in the following case, to wit:

Reyes vs. Jebsens Maritime, Inc. et al.

G.R. No. 230502, February 15, 2022

Work-relatedness; Illnesses not listed in Sec. 32 of the contract are disputably presumed as work-related; Compensability; The presumption of work-relatedness does not extend to the matter of compensability; Total and Permanent Disability; Third Doctor; Referral to a third doctor is mandatory in case of disagreements between the findings of the company-designated physician and the employee’s physician of choice

Facts:

Petitioner Luisito C. Reyes (Reyes) was hired by Alfa Ship & Crew Management GMBH as Second Officer on September 16, 2013, through its local manning agent, Jebsens (Both entities are referred to as Alfa, et al.). His employment was covered by a  standard employment contract for a period of six months with the vessel MV Pacific Fantasy, which was later renamed as MV Voge Fantasy.

Halfway through his contract, on December 26, 2013, he allegedly figured in an accident while on board the vessel. He slipped and fell, hitting his buttocks on the floor while releasing the tug line of the ship. He felt pain in his lumbar area, but he continued to work. He self-medicated and experienced slight relief. His lower back pain, however, persisted. He then requested a medical consultation.

On March 21, 2014, he was brought to a hospital in Sweden. Radiographs and CT scan of his lumbar spine revealed a Ll vertebra fracture. He was given pain medications and was advised to undergo

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physical therapy and to only take light jobs. In view of his medical condition, he was declared unfit to work and was repatriated on March 29, 2014.

On July 14, 2014, or 108 days from Reyes’s repatriation, he was issued a final medical report stating that he was fit to work for the condition referred, case closure. He was paid his sickness allowance for the duration of his treatment from March 29 until June 30, 2014.

However, Reyes was unsatisfied with the findings of the company-designated physician. He, thus, sought the opinion of a  physician of his choice. On July 23, 2014, he consulted with the Department of Orthopedics at the Armed Forces of the Philippines Medical Center, through Dr. Manuel Fidel Magtira (Dr. Magtira), due to recurring lower back pain. Dr. Magtira declared Reyes permanently unfit in any capacity for further sea duties after thorough history taking and physical examination.

Three months later, he consulted another physician who is an expert in the field, Dr. Noel Trinidad (Dr. Trinidad), a Fellow of the Philippine Orthopedic Association and the Philippine College of Surgeons. After his examination, Dr. Trinidad issued a Medical Certificate11 declaring that Reyes was permanently unfit to go back to work as a seaman.

Alfa, et al., on the other hand, averred that Reyes already finished his contract on March 19, 2014, when the latter complained of back pains. They denied that Reyes suffered an injury due to an accident that occurred on board the vessel. When he complained of back pains, he was advised to undergo medical examination. Upon his repatriation and arrival in the Philippines on April 1, 2014, Alfa, et al. immediately referred Reyes to the company-designated doctors at Shiphealth, Inc. led by Dr. Maria Gracia Gutay. Reyes was submitted to thorough medical tests which revealed that he had compression fracture Ll secondary to osteoporosis.

Alfa, et al. paid Reyes’s sickness allowance, but denied his claim for maximum disability benefits under a purported Collective Bargaining Agreement (CEA) because Reyes was declared fit to work and his condition was not the result of an accident. The CBA applied only in cases of accidents.

Reyes filed a  complaint with the Arbitration Branch of the NLRC. Mediation conferences were held, but no amicable settlement was reached. Reyes argued that he is entitled to, among others, US$235,224.00 as total permanent disability benefits under the CBA, citing the injury he sustained during an alleged accident that took place while he was working on board the vessel, and that such injury impaired his earning capacity. Alfa, et al., for their part, countered the fact of Reyes’s contract completion, that he did not suffer from any accident while on board the vessel, and that his illness was degenerative in nature.

LA Ruling:

The Labor Arbiter (LA) rendered a  Decision dismissing Reyes’s complaint for lack of merit.

The LA ruled that Reyes failed to prove by substantial evidence that he suffered a  work-related injury during the term of his employment. Even assuming Reyes suffered compression fracture, he failed to show that such was related to his work on board the vessel as a seafarer.

Reyes appealed to the NLRC which rendered a Resolution18 dismissing the appeal for lack of merit

NLRC Ruling:

The NLRC observed that nowhere in the medical reports of the company-designated physician was it stated that Reyes’s illness had anything to do with his duties on board Alfa, et al.’ vessel. It was noted that his fracture had been treated and healed, and that he was cleared for work on July 14, 2014, less than the 120/240-day period required since repatriation for maximum disability benefits.

Further, Alfa, et al. maintained that Reyes’s claim that he suffered an injury during an accident on board the vessel remained unsubstantiated and was not corroborated by anyone on the ship. The NLRC subscribed to the observation of the LA that Reyes was a  high-ranking official of the vessel who would have known the significance of putting the accident on record, but he did not.

The logbook entry only confirmed that Reyes’s illness started on December 26, 2013, when he felt low back pain. The NLRC did not lend credence to the declaration of permanent disability and work-related injury made by Reyes’s doctors of choice, Dr. Magtira and Dr. Trinidad, because they were made much later on July 23, 2014 and October 21, 2014, respectively, long after Reyes had disembarked from the vessel on March 29, 2014. They were also based on single consultations without adequate tests to support the same.

Reyes moved for reconsideration, but his motion was denied. He sought relief before the Court of Appeals (CA) via a petition for certiorari under Rule 65.

CA Ruling:

The CA denied the petition and affirmed the resolutions of the NLRC.

Similarly, the CA held that Reyes’s assertion that he figured in an accident on board the vessel was not substantiated; thus, the provisions of the CBA were not applicable. However, even if the accident was not substantially proven, Reyes could still seek relief from the provisions of the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC), which are deemed incorporated in the employment contract between Reyes and Alfa, et al.. Pursuant to Section 20(B) of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers On-Board Ocean-Going Vessels, the employer is liable for disability benefits when the seafarer suffers from a  work-related injury or illness during the term of the contract.

Reyes’s motion for reconsideration was denied. Hence, he filed the petition before the Supreme Court (SC).

Issue/s:

Whether or not the seafarer’s illness is work-related although not found in the list of occupations diseases

Whether or not the lumbar illness of the seafarer even if deemed work-related is automatically compensable

Whether or not the seafarer has the obligation to initiate examination of the third doctor

Whether or not the company has the obligation to act on employee’s intention to seek findings of the third doctor

Whether or not the seafarer who was deemed total and permanently disabled but failed to prove the work accident being claimed is entitled to full disability benefit under the CBA

SC Ruling:

The SC found the petition partly meritorious.

For disability to be compensable under Sec. 20(A) of the 2010 POEA-SEC, two elements must concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer’s contract. In the present case, it is undisputed that Reyes’s injury happened during the term of his contract while on board the vessel.

The Court, in Sestoso v. United Philippine Lines, Inc., citing More Maritime Agencies, Inc. v. NLRC, held that compensability of an illness or injury does not depend on whether the injury or disease was pre-existing at the time of employment but rather on whether the injury or illness is work-related or had been aggravated by the seafarer’s working condition.

Under POEA Memorandum Circular No. 10, Series of 2010, referred to as the Standard Terms and Conditions Governing the Employment of Filipino Seafarers On-Board Ocean-Going Vessels (MC No. 10) and deemed incorporated in every employment contract of seafarers, work-related illness is defined as any sickness as a result of an occupational disease listed under Sec. 32-A of the contract with the conditions set therein; while work-related injury is an injury arising out of and in the course of employment.

In the same MC No. 10, Sec. 20, par. A( 4) categorically provides that those illnesses not listed in Sec. 32 of the contract are disputably presumed as work-related.

The law clearly laid down a  legal presumption of work-related illness or injury in favor of seafarers. This legal presumption was borne by the fact that the said list cannot account for all known and unknown illnesses/diseases that may be associated with, caused or aggravated by such working conditions, and that the presumption is made in the law to signify that the non-inclusion in the list of occupational diseases does not translate to an absolute exclusion from disability benefits. Thus, the burden is on the employer to disprove the work-relatedness, failing which, the disputable presumption that a  particular injury or illness that results in disability is work-related stands.

The CA correctly observed that the examinations, procedures, and diagnosis have amply proven  Reyes’s work-related injury. The nature and demand of his work as a seafarer, which the CA found to have been physically demanding, aggravated his medical condition resulting in a  fracture to his lumbar spine. Jurisprudence states that although the employer is not the insurer of the health of his employees, he takes them as he finds them and assumes the risk ofliability. Having shown that Reyes’s injury is compensable because it has a causal connection with his work and he suffered the same during the term of his contract, the next question is: should Reyes be entitled to total and permanent disability benefits?

A seafarer’s entitlement to disability benefits is not automatic simply because of a  finding that his illness or injury is compensable. In .Gamboa v. Maun/ad Trans, Jnc.,40 the Court reiterated the settled rule that the entitlement of a  seafarer on overseas employment to disability benefits is governed by law, by the parties’ contracts, and by the medical findings. By law, the relevant statutory provisions are Articles 197 to 199 (formerly Arts. 191 to 193)41 of the Labor Code in relation to Sec. 2(a), Rule X42 of the Amended Rules on Employee Compensation. By contract, the material contracts are the POEA-SEC, which is deemed incorporated in every seafarer’s employment contract and considered to   be the minimum requirements acceptable to the government, the parties’ CBA, if any, and the employment agreement between the seafarer and the employer.

The conflicting findings called for the referral to a third doctor jointly agreed upon by the parties and whose findings shall be final and binding upon them. The initiative for referral to a third doctor should come from the employee, i.e., Reyes himself. He must actively or expressly request for it.

Consequently, the Minutes of the Single Entry Approach (SENA) revealed that Reyes provided Jebsens with the second doctor’s certificate and relevant CBA provision. Also, contrary to the CA’s findings, Reyes expressly proposed the referral to a  third doctor. It was Alfa, et al. who refused this, claiming through their counsel, that they had not been given authority to refer the case to a third doctor.

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Referral to a third doctor is mandatory in case of disagreements between the findings of the company-designated physician and the employee’s physician of choice. Jurisprudence further holds that upon notification by the seafarer of his intention to refer the conflicting findings to a  third doctor, the company carries the burden of initiating the process for referral to a  third doctor commonly agreed upon between the parties.

Alfa, et al. clearly failed to abide by the mandatory referral procedure under the law. As a result, the findings of the company-designated physician cannot be automatically deemed conclusive and binding. Accordingly, the Court must now weigh the inherent merits of the medical findings presented by both sides.

The SC gave greater weight and credence on the medical report of Reyes’s physician; Dr. Magtira, that the former is deemed permanently disabled and unfit for any sea duties.

As to entitlement to CBA provision on disability, Reyes must indeed convincingly prove the fact of accident in order to claim total and permanent disability benefits under the CBA. Unfortunately, he failed to do so. The CBA provision, therefore, cannot apply here.