Dear Atty. Gab,

Musta Atty! I hope this letter finds you well. My name is Carlos Mendoza, and I’ve been working as an Able Seaman for almost 15 years. Last year, around March 15, 2023, while working aboard the M/V Pacific Voyager, I had a bad fall during rough seas and severely injured my back. I was immediately given first aid and then medically repatriated here to Manila on March 25, 2023.

Since arriving, I’ve been under the care of the company-designated physician, Dr. Evelyn Santos, at St. Luke’s Medical Center Extension Clinic. I underwent surgery in April and have been attending regular physical therapy sessions since May. It’s now been more than five months, maybe close to 160 days since my repatriation, and while Dr. Santos says I am improving, she hasn’t given a clear indication if I can ever go back to sea duty. My therapy sessions are ongoing, and she mentioned needing more time to observe my progress before making a final assessment.

I’ve read online and heard from former colleagues that if you can’t work for more than 120 days, your disability is automatically considered permanent and total, meaning I should be entitled to full disability benefits under the POEA contract. However, the manning agency keeps telling me to just continue my treatment and wait for Dr. Santos’ final word. I’m confused and worried, Atty. Gab. Does the 120-day rule automatically apply? Am I already permanently disabled even if the company doctor hasn’t said so? What are my rights in this situation? My family depends on my income, and this uncertainty is very stressful.

Thank you for taking the time to read my letter. I would greatly appreciate any guidance you can offer.

Respectfully,
Carlos Mendoza

Dear Carlos,

Thank you for reaching out and sharing your situation. It’s completely understandable that you’re feeling confused and anxious, especially given the reliance your family has on your work. Navigating disability claims as a seafarer involves specific rules that can sometimes seem complex, particularly regarding the timeframes involved.

The core issue you’re grappling with involves the determination of disability – specifically, when a temporary inability to work becomes legally recognized as a permanent disability eligible for compensation under the Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC). While the 120-day mark is significant, it isn’t always an automatic trigger for permanent total disability, especially if further medical treatment is deemed necessary and is ongoing.

Understanding Seafarer Disability: The 120/240-Day Framework

The process for determining compensability for work-related injuries or illnesses sustained by seafarers is primarily governed by the POEA-SEC, supplemented by provisions of the Labor Code and relevant jurisprudence. A key aspect is the timeline for assessing a seafarer’s fitness to return to work or the degree of their disability.

When you are medically repatriated, you enter a period of temporary total disability. During this time, you are unable to perform your sea duties and are entitled to sickness allowance. The company-designated physician is tasked with diagnosing, treating, and ultimately assessing your condition. Initially, the law contemplates a period of 120 days for this process.

“Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days.” (Based on Section 20(B)(3), POEA-SEC)

This 120-day period is often the source of confusion. While Article 192(c)(1) of the Labor Code states that a temporary total disability lasting continuously for more than 120 days is considered permanent and total, this rule has been clarified by the Supreme Court in relation to the POEA-SEC and the Amended Rules on Employees’ Compensation (AREC).

Jurisprudence has established that the 120-day period is not absolute. If the seafarer requires further medical treatment beyond the initial 120 days, and the company-designated physician indicates this necessity, the period for assessment can be extended up to a maximum of 240 days.

“If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists.” (Principle derived from jurisprudence interpreting POEA-SEC and Labor Code)

During this extended period (from day 121 to day 240), you are still considered to be under a state of temporary total disability, provided your treatment is ongoing and justified. It is only when the company-designated physician fails to issue a final assessment of fitness or disability after the 240-day maximum period has lapsed, or declares a permanent disability within that timeframe, that the disability is legally considered permanent.

In your case, Carlos, you mentioned being repatriated on March 25, 2023. Counting from that date, 160 days places you beyond the initial 120-day window but still within the potential 240-day extension. Since Dr. Santos has indicated that further therapy and observation are needed, the extension likely applies. Therefore, your disability is not yet automatically deemed permanent and total simply because 120 days have passed. The crucial factor is the ongoing medical necessity as determined by the company-designated physician.

The company-designated physician’s role is central in this process. Their findings regarding your fitness to work or the degree of your disability are generally given significant weight, as mandated by the POEA-SEC. However, this doesn’t mean their assessment is incontestable. The POEA-SEC provides a mechanism for challenging the company physician’s findings.

“If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.” (Based on Section 20(B)(3), POEA-SEC)

A claim for permanent total disability benefits typically arises under specific circumstances, such as:

• The company-designated physician issues a certification of permanent total disability.
• The company-designated physician fails to issue any certification (fitness or disability) after the lapse of the 240-day maximum period, and the seafarer remains unable to work.
• The company-designated physician declares a permanent partial disability, but the seafarer remains incapacitated to perform their usual sea duties after the 240-day period.
• Specific scenarios involving disagreements between the company physician and the seafarer’s chosen physician, potentially leading to a third doctor’s opinion.

Since your treatment is ongoing and within the 240-day timeframe, prematurely filing a claim for permanent total disability might be considered unfounded at this stage, as you are still technically under temporary total disability pending the final assessment.

Practical Advice for Your Situation

• Continue Cooperating with Treatment: It is vital to continue attending your physical therapy sessions and follow the medical advice of the company-designated physician, Dr. Santos. Document your attendance and progress.
• Maintain Open Communication: Keep communicating with the manning agency and Dr. Santos regarding your treatment status and expected timeline for a final assessment. Politely inquire about the progress and the basis for needing continued treatment beyond 120 days.
• Document Everything: Keep copies of all medical reports, therapy session records, receipts for any related expenses, and correspondence with the company and its physician.
• Understand the 240-Day Limit: Be aware that the company physician generally has up to 240 days from your repatriation (around November 19, 2023, in your case) to make a final declaration of fitness or disability, provided treatment continues to be medically justified.
• Consider a Second Opinion (Strategically): While you have the right to consult your own doctor, understand that under the POEA-SEC, the company-designated physician’s assessment is the primary basis unless validly contested. A second opinion is useful for your own information and potential challenge later, but it doesn’t automatically override the company doctor’s findings within the 240-day window.
• Monitor the Assessment: As the 240-day mark approaches, be vigilant about receiving a final assessment from Dr. Santos. If no assessment is given by then, or if you disagree with a potential partial disability rating, that would be the appropriate time to formally explore your options, including potentially invoking the third-doctor referral process or filing a claim.
• Consult a Seafarer Rights Lawyer: Given the complexities, consulting a lawyer specializing in maritime labor law can provide personalized advice based on the specific details of your medical reports and contract. They can help you navigate the process if disagreements arise or if the 240-day period lapses without a resolution.

Carlos, while the 120-day rule is a common point of reference, the potential extension to 240 days is crucial in situations like yours where treatment is ongoing. Focus on your recovery, maintain documentation, and understand the timelines involved. Your right to benefits depends heavily on the final medical assessment or the lapse of the maximum period without one.

Hope this helps!

Sincerely,
Atty. Gabriel Ablola

For more specific legal assistance related to your situation, please contact me through gaboogle.com or via email at connect@gaboogle.com.

Disclaimer: This correspondence is provided for informational purposes only and does not constitute legal advice. For specific legal guidance tailored to your situation, please schedule a formal consultation.