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Total and permanent disability benefits of a seafarer undergoing continuous medical treatment

By: ATTY. DENNIS R. GORECHO - CDN Digital | January 07,2020 - 06:51 AM

A seafarer still undergoing medical treatment beyond the 120/240 day period despite an assessment from the company designated physician is entitled to total and permanent disability benefits.

This principle was reiterated by the Supreme Court in the case of Dario Carcedo v. Maine Marine Philippines, Inc./ Misuga Kajun Co., Ltd (G.R. No. 203804, April 15, 2015).

The seafarer’s foot was wounded because of his safety shoes while on board the vessel.

Despite medication, his foot’s condition worsened when he slid down the deck and bumped his right foot. He felt pain in the back of his swollen leg and developed fever and headache.

When  he was treated at a Japanese hospital, the doctor diagnosed the seafarer with an open fracture of the right major toe bone with a suspicion of sepsis.

Upon his repatriation in the Philippines, the seafarer initially underwent debridement (surgical removal of contaminated tissue) of the wound of the right big toe. The toe was later amputated.

On  March 24,  2009, the company doctor recommended “an impediment disability grading of 8%  for Loss of first toe (big toe) and some of its metatarsal bone.”

Due to infection of the amputated stump, the seafarer was again admitted to the hospital where the right first metatarsal bone was removed.

The seafarer’s personal doctor noted that the absence of the first and second toe caused him to walk on the lateral aspect of his left foot with a cane. He  had some pain on weight bearing.

The Supreme Court said the schedule of disabilities in the collective bargaining agreement (CBA), if there is one, or the POEA standard employment contract, should be the primary basis for the determination of a seafarer’s degree of disability.

However, the POEA contract  and the CBA cannot be read in isolation from the Labor Code and the Amended Rules on Employee Compensation (AREC). Otherwise, the disability rating of the seafarer will be completely at the mercy of the company-designated physician, without redress, should the latter fail or refuse to give one.

The Supreme Court said that the 24 March 2009 disability assessment made by the company doctor was not definitive. The said disability assessment was merely  an interim one because the seafarer  continued to require medical treatments even after 24 March 2009.

He was confined in the hospital from 20 April 2009 to 6 June 2009, where he underwent serial debridements, curettage, sequestrectomy and even amputation of the right first metatarsal bone.

Since the seafarer required further medical treatments beyond the 120 day period, his total and temporary disability was extended.

The company-designated physician then had until 240 days from repatriation to give the final assessment.

However, the company-designated physician failed to give a definitive impediment rating of the seafarer’s disability beyond the extended temporary disability period, after the 120-day period but less than 240 days.

Neither was there a certification from the company-designated physician as to the seafarer’s fitness for sea service. And even if it had, it would be belied by his subsequent reports on, and the fact of, the continuation of medical treatments and hospitalization of the seafarer after the issuance of the 24 March 2009 report

By operation of law, the seafarer’s total and temporary disability lapsed into a total and permanent disability.

It is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.

Permanent total disability means disablement 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. It does not mean absolute helplessness.

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Atty. Dennis R. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan law offices. For comments, email [email protected], or call 09175025808 or 09088665786).

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