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of the third doctor referral in seafarer’s cases

By: ATTY. DENNIS GORECHO October 22,2018 - 09:11 PM

ATTY. DENNIS GORECHO

The POEA contract does not require a specific period within which the parties in a case involving a seafarer’s disability claims may seek the opinion of a third doctor. They may do so even during the mandatory conference before the labor tribunals.

This was the recent ruling of the Supreme Court in the case of Ilustricimo vs. NYK-Fil Ship Management (G.R. No. 237487 June 27, 2018) that involved a seafarer that was diagnosed with bladder cancer.

The court ruled that the company-designated doctors’ assessment is not always binding in cases of non-referral to a third doctor of disability claims of seafarers.

Legal issues on compliance with the third-doctor referral procedure is based on Section 20(A)(3) of the POEA-Standard Employment Contract which provides that if a doctor appointed by the seafarer disagrees with the assessment of the company-designated doctor, a third doctor may be agreed jointly between the employer and the seafarer, and the third doctor’s decision shall be final and binding on both parties.

Referral to a third doctor became a mandatory procedure as a consequence of the POEA contract provision that the company-designated doctor’s assessment should prevail in case of non-observance of the third doctor referral provision in the contract. Stated otherwise, the company can insist on its disability rating even against the contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking fora referral to a third doctor who shall make his or her determination and whose decision shall be final and binding on the parties.

The Supreme Court downplayed the employer’s argument that the seafarer’s failure to communicate his separate medical certification prior to the filing of the complaint not only constitutes a breach of his contractual obligations under the POEA contract, but also renders the complaint premature and is a ground for the dismissal of his claim for disability benefits.

The Court in said case held that the employers do not deny receiving the seafarer’s letter despite the irinsistence that he failed to activate the third doctor provision.

In fact, the employers repeatedly insisted that the letter was not meant to dispute the company-designated doctor’s assessment, but rather to inform them that petitioner needed continued medical assistance. On the assumption that the seafarer indeed “belatedly” informed the employer of the opinion of his second doctor and his intent to refer his case to a third doctor, the fact remains that they have been notified of such intent.

The instant Ilustricimo vs. NYK-Fil case emphasized that the POEA contract does not require a specific period within which the parties may seek the opinion of a third doctor, and they may do so even during the mandatory conference before the labor tribunals.

Accordingly, upon being notified of the seafarer’s intent to dispute the company doctors’ findings, whether prior or during the mandatory conference, the burden to refer the case to a third doctor has shifted to the respondents.

The Supreme Court ruled in In Formerly INC Ship management Incorporated v. Rosales (438 SCRA 30) that when the seafarer challenges the company doctor’s assessment through the assessment made by his own doctor, the seafarer shall so signify and the company thereafter carries the burden of activating the third doctor provision:

This, the employers failed to do so, and the seafarer cannot be faulted for the non-referral. Consequently, the company-designated doctors’ assessment is not binding.

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