FAILURE OF THE SEAFARER TO REGULARLY REPORT TO THE COMPANY PHYSICIAN SHALL RESULT IN FORFEITURE OF THE DISABILITY BENEFIT

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.

Thus, the SC held in the following case:

Philippine Transmarine Carriers, Inc. vs. Allan N. Tena-E

G.R. No. 234365, July 6, 2022

Disability Claim; Final and Definitive Assessment; Company-Designated Physician’s findings vs. Private Doctor’s; Duty of seafarer to report for treatment in case finding is tentative; 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; 120-day rule; 240-day rule

Facts:

Petitioner Philippine Transmarine Carriers, Inc. (PTCI) hired respondent Allan N. Tena-e (Allan) as a  seafarer for and in behalf of its foreign principal, Seaspan Crew Management Limited (Seaspan), under a nine-month contract with a monthly salary ofUS$575.00.

After undergoing his pre-employment medical examination, Allan boarded the vessel M/V Mol Efficiency. On October 5, 2014, while on cargo-watch duty, Allan figured in an accident when a turnbuckle fell on his right shoulder. Upon feeling extreme pain and swelling on his shoulder, he reported the incident to the ship captain, and was referred to the medical staff for treatment.

In the October 11, 2014 Medical Report, Allan was declared unfit for sea duty due to his displaced right clavicular fracture. The following day, he was taken to a  hospital in Panama where the attending physician gave him a similar diagnosis.

On October 20, 2014, Allan was medically repatriated to the Philippines. The following day, he was immediately referred to ShiptoShore Medical Assist (ShiptoShore) and St. Luke’s Medical Center (St. Luke’s) for examination, management, and treatment.

In a  Medical Report dated October 22, 2014, company-designated doctors John Ericson T. Sanez (Dr. Sanez) and Marilar F. De Guzman (Dr. De Guzman), diagnosed Allan with a fractured and displaced

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right clavicle. Thereafter, Allan was placed under the care of an Orthopedic Shoulder Specialist. In a  Medical Report dated October 23, 2014, Allan was advised to continue wearing a clavicular strap for two to three months and do home exercises, with formal rehabilitation to begin on the third month.

Notwithstanding the treatment, Allan continued to feel pain, discomfort, swelling, and limited range of motion on his right collarbone. To address this, he was given a treatment plan consisting of home exercises, regular x-rays, and therapy sessions. From November 2014 to March 2015, Allan continued with his therapy and rehabilitation as supervised by the company-designated doctors, who issued medical reports on the following dates: 1. November 17, 2014, 2. December 2, 2014, 3. January 12, 2015, 4. February 5, 2015, 5. March 16, 2015.

In the Medical Report dated March 16, 2015, Dr. Safiez and Dr. De Guzman made an interim assessment of Disability Grade 12. On March 26, 2015, Allan, through counsel, sent a  letter to Dr. Safiez asking if further treatment was still needed beyond the 120-day period after his repatriation, considering that he was still under persistent pain. He requested a response from ShiptoShore before April 7, 2015, but his query was left unanswered.

On April 18, 2015, Allan consulted his physician of choice and Orthopedic Specialist, Dr. Rogelio Catapang, Jr. (Dr. Catapang Jr.). In a Medical Report, Dr. Catapang Jr. declared Allan unfit for sea duty. The next day, Allan also consulted Rehabilitation Medicine Expert, Dr. Francis N. Pimentel (Dr. Pimentel), who similarly declared him unfit for sea duty with permanent disability.

On April 20, 2015, Allan initiated Single-Entry Approach (SEnA) proceedings before the National Capital Region (NCR) Arbitration Branch of the NLRC to claim permanent and total disability benefits. Subsequently, on July 24, 2015, Allan filed a  Complaint against petitioners and Carlos Salinas (Salinas), as representative of PTCI (PTCI, et al.), for disability benefits, unpaid sick wages, reimbursement for transportation and medical expenses, as well as damages with attorney’s fees.

LA Ruling:

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

According to the LA, contrary to petitioners’ claim, Allan did not abandon his treatment since he was not informed whether his follow-up check-up on April 13, 2015 would push through. Allan’s March 26, 2015 letter showed his willingness to be further treated and evaluated. The absence of a  final assessment by the company-designated physician after the lapse of the 240-day period from repatriation entitled Allan to total and permanent disability benefits by operation of law.

On the other hand, Allan’s claim for damages was denied for lack of factual basis. Nevertheless, attorney’s fees were awarded in favor of Allan since he was -compelled to hire the services of a counsel to protect his right.

Aggrieved, petitioners appealed to the NLRC.

NLRC Ruling:

The NLRC affirmed the LA’s Decision.

Discontented, petitioners elevated the matter to the Court of Appeals (CA).

CA Ruling:

The CA denied the appeal.

It agreed with the findings of the lower tribunals that Allan did not abandon his treatment. It held that the use of the word “tentative” on the date of his follow-up check-up meant that the said check-up may or may not push through. As such, a  prior confirmation was necessary.

The CA noted that Allan even wrote a  letter to confirm his further evaluation and treatment, which was left unanswered by the company-designated doctors. Moreover, it found that Dr. Safiez failed to issue a final assessment within the 120/240-day period from the date Allan was repatriated.

The interim disability rating of Grade 12 given by Dr. Safiez appears to have no conclusive findings supporting it since Allan was still undergoing evaluation and therapy when such disability rating was issued.

Issue/s:

Whether or not the extension of 120-day period is justified

Whether or not the tentative assessment beyond the 120 days renders the disability permanent

Whether or not failure of the seafarer to report for scheduled checkups amounts to medical abandonment

Whether or not a medical report that states “tentative,” issued beyond the 120-day period, as the date is not fixed renders the disability permanent

SC Ruling:

The SC found the petition meritorious.

The SC held that it is settled 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. Section 20 (A) of the 2010 POEA-SEC,45 which is the rule applicable to this case since Allan was employed in 2014, governs the procedure for compensation and benefits for a work-related injury or illness suffered by a seafarer on board sea-going vessels during the term of his employment contract.

The SC cites the provision stating that 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.

In relation thereto, Section 2, Rule X of the Amended Rules on Employees’ Compensation implementing Title II, Book IV of the Labor Code, which provides that the income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid.

In Elburg Shipmanagement Phils., Inc. v. Quiogue, the rules governing claims for total and permanent disability benefits are summarized as follows:

1. The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of

diagnosis and treatment shall be extended to 240 days. The employer has the

4. burden to prove that the company-designated physician has sufficient justification to extend the period; and
5. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.

In the case at bar, Allan was placed under the care of the company-designated doctors from October 2014 to March 2015. During this time, he underwent therapy and rehabilitation under the supervision of ShiptoShore’s Orthopedic Shoulder Specialist.

In fact, he had good callus formation and showed improvement from displaying a limited range of motion after his injury to showing full range motion during his January 2015 checkup.

By February, Allan was able to carry objects with his right upper extremity with level at one to two out of 10. He was scheduled for another re-evaluation with possible clearance on March 2, 2015. In the last Medical Report issued by the company-designated doctors dated March 16, 2015, Allan continued to show improvement but still continued to feel pain. Dr. Sañez reiterated that Allan’s projected return to full load capacity would be four to six months from October.

Dr. Sañez also gave Allan an interim assessment of “Disability Grade 12 -collarbone fracture, but able to raise arm above shoulder level” with a  re-evaluation tentatively scheduled on April 13, 2015. It was also explicitly stated in the medical report that Allan will be “further observed as he was advised to continue with his usual activities while using the prescribed medicated patch.” At this point, Allan’s treatment already went beyond 120-day period, and the doctor’s findings and schedule for re-evaluation clearly constitute a significant act that justified the extension of petitioner’s treatment period to 240 days.

Notably, Dr. Sañez only issued an interim assessment, which is not the final and definitive assessment required under the law. A final and definitive disability assessment is required in order to truly reflect the extent of the illness of the seafarer, and his or her capacity to resume work as such. To be conclusive, the medical assessments or reports should be complete and definite to afford the appropriate disability benefits to seafarers.

However, PTCI cannot be faulted for its company-designated physician’s failure to issue a  final and definitive disability assessment. Dr. Sañez had until June 17, 2015, or before the lapse of 240 days from repatriation, within which to issue his final assessment. However, Allan did not appear on the scheduled re-evaluation on April 13, 2015 making it impossible for Dr. Sañez to examine him.

As to Allan’s contention that he wrote a  letter through his counsel to confirm the need for continued treatment without receiving a  reply from Dr. Safiez, We cannot take such fact against PTCI. Under Section20 (A) of the 2010 POEA-SEC, it  is the seafarer’s duty to 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 and he shall also regularly report 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.

Here, Allan regularly appeared for his monthly check-ups from November 2014 to March 2015. It was only during his April 2015 schedule that he suddenly did not show up. Notably, in the last medical report issued, it was clearly stated that Allan was still under further observation as he was advised to continue his usual activities with the medical patch and scheduled for re-evaluation the following month.

Thus, it behooves Allan to appear on his scheduled April 13, 2015 appointment as it is  the seafarer’s duty and burden to report to his regular check-ups. Here, he did not even attempt to appear on his scheduled check-up nor did he even exert any effort to call Dr. Sañez’s office if he really wanted to find out if his check-up would push through. It has also not escaped this Court’s mind that Allan’s counsel wrote to Dr. Sañez on March 26, 2015 to confirm if further treatment was needed beyond the 120-day period, and not to confirm if the April 13, 2015 schedule would push through.

To consider such letter as an act of confirming the April 13, 2015 appointment would be too speculative. Moreover, the 120-day period from Allan’s repatriation fell on February 17, 2015. Nevertheless, Allan continued to show up during his check-up for the month of March as scheduled, which was already beyond the 120-day period. It is quite baffling why Allan had to engage the services of a counsel as early as March 26, 2015 to confirm if further treatment was needed when: (1) he was already continuing treatment beyond the 120-day period; (2) the 240-day period had not yet lapsed and he was informed that he still needed further evaluation; and (3) he had not yet sought the opinion of a physician of his own choice.

Accordingly, this Court deems Allan’s March 26, 2015 letter redundant because he has already been continuing treatment beyond the 120-day period. In any case, the last medical report issued clearly stated that he needed to be further observed and re-evaluated after using the prescribed medicated patch.

While the date written in the March 16, 2015 Medical Report had the word “tentative” written, it only meant that the date was not fixed, or still subject to change. However, the nomenclature is  not at issue because whether or not the date was tentative or fixed, what is clear is that Allan still needed further treatment.

Thus, to the mind of this Court, April 13, 2015 was the date of Allan’s re-evaluation, unless otherwise changed by Dr. Sañez. There being no change in the date communicated to Allan, he should have appeared during the date of his re-evaluation. To stress, it  is the seafarer’s responsibility to report to his regular check-ups.

Based on the foregoing, Allan breached his duty by not showing up on his scheduled April 13, 2015 appointment thereby effectively preventing Dr. Sañez from making a  final disability assessment. Since Allan was still undergoing treatment by the company doctor and has been showing signs of improvement, and was even asked to come back for possible clearance, there was an indication that further treatment would address his temporary disability.

This Court emphasizes that a  temporary total disability only becomes permanent if the company-designated physician declares it to be so within the 120-day period, or 240-day period, provided the extension was justified in the latter case, or after the lapse of such periods, and no declaration is made by the company-designated physician. The mere lapse of the 120/240-day period does not automatically entitle a seafarer to total and permanent disability benefits. In any case, as between the medical reports issued by the company-designated physicians, on one hand, and Allan’s own physicians of choice, on the other, the former must prevail.

In the case at bar, a  careful review of the medical reports of Allan’s physicians of choice reveals that the findings were merely based on general impressions after conducting a  single physical examination. In fact, no other tests were conducted to ascertain Allan’s condition. This is in stark contrast with the various medical reports issued by Dr. Sañez, who has personal knowledge of Allan’s actual medical condition, having closely, meticulously, and regularly monitored it, and actually treated Allan’s illness from October 2014 to March 2015. Moreover, Dr. Catapang Jr. and Dr. Pimentel did not issue any disability grading. Furthermore, Dr. Catapang Jr. and Dr. Pimentel’s reports also contain contrary findings as to whether Allan underwent therapy.

Under these circumstances, the assessment of Dr. Sañez should be given more credence for having been arrived at after months of medical attendance and diagnosis, compared with the assessment of Allan’s private physicians that was issued after a  single examination and based on Allan’s existing medical records. In other words, Dr. Sañez is more qualified to assess Allan’s disability.

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