Atty. Dennis R. Gorecho
Back pains or spine injuries or illnesses are inherent in a seafarer’s job characterized by excessive and strenuous physical activities, such as lifting, carrying, pushing, pulling and moving heavy equipment and materials.
The injury or illness may occur over a period of time or on the spot depending upon the physical strength and posture of the workers as well.
The common back injuries or illness include lumbar spondylosis, lumbar radiculopathy, multi-level disc dessication, posterior disc herniation, or canal stenosis.
In compensation claims, employers usually argue that the nature of disability and the benefits are determined by the manner they are graded or classified under the POEA contract and not by the number of days that a seafarer is under treatment. If a seafarer has an injury or medical condition that is not considered a Grade 1 impediment, then he cannot claim that he is totally or permanently disabled. To allow the contrary, they argue, would render naught the schedule of disabilities.
Under the POEA contract, Grade 1 disability grading will be given if a seafarer suffered injury to the spinal cord if (a) it makes walking impossible even with the aid of a pair of crutches or (b) results to incontinence of urine and feces.
Partial disability benefits will be given if the assessment is as follows: (a) Grade 4 if it caused walking impossible without the aid of a pair of crutches; (b) Grade 6 if he suffered fracture of the dorsal or lumber spines resulting severe or total rigidity of the trunk or total loss of lifting power of heavy objects ; (c) Grade 8 if he suffered moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk; and (d) Grade 11 if he suffered slight rigidity or one third (1/3) loss of motion or lifting power of the trunk.
In some instances, any seafarer who suffered these medical conditions is in essence should be declared total permanent disabled, and not merely partial temporary. The findings and the disability grading of a company-designated physician could be set aside in the determination of disability compensation.
The Supreme Court usually considers the glaring apparent inconsistency in the company doctor’s medical report between the classification of seafarer’s disability and the fact that he had been unable to work for long period of time, which condition makes his disability permanent and total. (Crystal Shipping, Inc. vs. Natividad, 473 SCRA 559).
Permanent total disability means disablement of a seafarer to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work. (Seagull Maritime Corporation vs. Dee, 520 SCRA 109).
If those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally or permanently disabled (Kestrel Shipping Co., Inc. v. Munar, 689 SCRA 795)
Companies cannot deny the fact that a seafarer suffering from any of these medical conditions will be considered more of a liability than an asset if he is allowed to go on board the vessel. He would no longer be able to perform strenuous activities such as the rigorous duties of a seafarer.
The Supreme Court acknowledge that symptoms following surgery are relieved only to recur after a variable period. The causes may include insufficient removal of disc material and further extrusion, rupture of another disc, adhesions about the nerve root and formation of an osteophyte at the site of removal of bone. Even a successful disc removal does not guarantee a permanent cure as fibrosis can produce a dense constricting scar tissue, which is presumed to be a prime cause of recurrent symptoms(NFD . v. Illescas, G.R. No. 183054, September 29, 2010.)
Surgery can never stop the pathological process nor restore the back to its previous state. Similar poor results have been found with repeated attempts at surgical intervention for the relief of chronic low back pain. If long term relief is desired, continued mechanical stress of postural or occupational type must be avoided.
Resuming a seafarer’s usual work, which includes increased loading, twisting, or bending and extension of the back, will further expose him to dangers of aggravating his medical condition.