Dear Atty. Gab

From: ricardo.cruz@email.com
To: Atty. Gab
Subject: Musta Atty! Urgent Question about Seafarer Disability

Good day, Atty. Gab,

Musta Atty! I am Ricardo Cruz, and I’ve been working as an Engine Fitter on cargo vessels for the past 12 years. On my last contract, about two and a half months ago, I started experiencing severe back pain and numbness in my legs, especially after long hours in the engine room and heavy lifting. The ship doctor gave me pain relievers, but it didn’t get better. I was medically repatriated to Manila about 75 days ago.

Upon arrival, I immediately reported to the company-designated clinic as required. I’ve been undergoing physical therapy and taking medications prescribed by the company doctor. They initially said it was a severe muscle strain, but now they are also looking into a possible slipped disc. The doctor mentioned I still need a few more weeks of observation and therapy, and possibly an MRI, before they can give a final assessment on whether I can return to sea duty.

Lately, I’ve been very worried, Atty. I really don’t think I can go back to the strenuous work onboard given my condition. The pain is still significant, and I’m scared of making it worse. Some of my crewmates told me that I should already file a claim for permanent disability benefits with the NLRC to protect my interests, even if the company doctor hasn’t finished my treatment or given a disability rating. They said waiting too long might be bad for my claim. I am confused about my rights and the proper procedure. Can I indeed file for permanent disability now? Or do I need to wait for the company doctor’s final word? I don’t want to jeopardize any benefits I might be entitled to. Your guidance would be greatly appreciated.

Salamat po,

Ricardo Cruz

Dear Ricardo,

Thank you for reaching out and sharing your situation. I understand your anxiety about your health and your future, especially concerning your ability to return to sea duty and your entitlement to benefits. It’s a common concern among seafarers who experience health issues during their contract.

The core issue here revolves around the timing of filing for permanent disability benefits and the crucial role of the company-designated physician’s assessment. Generally, a claim for permanent disability benefits is considered premature if filed before the company-designated physician has made a definitive assessment of your fitness or disability, or before the lapse of specific periods mandated by law and the POEA Standard Employment Contract (POEA-SEC). Let’s delve into this further.

Navigating the Waters of Seafarer Disability Claims: Understanding Timelines and Medical Assessments

As a seafarer, your employment is governed by specific laws and contractual provisions, primarily the Labor Code of the Philippines and the POEA-SEC. These provide a framework for compensation and benefits in case of work-related injury or illness. When you are medically repatriated, you enter a period that is legally considered as temporary total disability. During this time, your employer is responsible for your medical treatment and for paying you a sickness allowance.

The law provides specific timeframes concerning this period of temporary total disability. Initially, this period is up to 120 days. Article 192(c)(1) of the Labor Code, in relation to disability benefits, states:

(c) The following disabilities shall be deemed total and permanent:

(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided for in the Rules; x x x x

This 120-day period is significant. It is the timeframe given to the company-designated physician to treat you and determine whether you are fit to return to work or if you have suffered a permanent disability. If, after 120 days, your treatment is still ongoing and the company-designated physician believes further medical attention is necessary for your recovery or for a more definitive assessment, this period of temporary total disability can be extended up to a maximum of 240 days. This is supported by the Amended Rules on Employees’ Compensation (AREC):

Sec. 2. Period of Entitlement — (a) 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. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System.

During this period (whether 120 or up to 240 days), you are entitled to sickness allowance, as provided in the POEA-SEC. Section 20-B (3) of the POEA-SEC is crucial here:

3. 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.

For this purpose, the seafarer shall 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, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.

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.

The assessment of the company-designated physician is the primary basis for determining your fitness to work or the degree of your disability. Filing a claim for permanent disability benefits before this physician has issued a final assessment, or before the 120-day (or extended 240-day) period has lapsed without such an assessment, is generally considered premature. At that stage, your disability is still considered temporary, and a cause of action for permanent disability benefits has not yet fully arisen.

A cause of action for total and permanent disability benefits typically arises if: (a) the company-designated physician issues a declaration of permanent disability; (b) the 120-day period lapses without a declaration of fitness or disability, and there’s no indication that further medical treatment would justify an extension to 240 days; or (c) the 240-day period lapses without any certification from the company-designated physician. If you file your claim before these conditions are met, it may be dismissed for lack of cause of action, as your disability is still legally considered temporary.

It is also vital that you continue cooperating with the treatment provided by the company-designated physician. Your failure to attend scheduled appointments or complete prescribed treatment without a valid reason could be detrimental to your claim later on. Only after the company-designated physician has issued a final assessment can you potentially challenge it by consulting a physician of your choice. If your chosen doctor’s findings differ, the POEA-SEC provides for a mechanism where a third doctor, mutually agreed upon by you and your employer, can make a final and binding assessment.

Practical Advice for Your Situation

• Continue Medical Treatment: Diligently follow the treatment plan and attend all appointments with the company-designated physician. Your full cooperation is essential.
• Await Medical Assessment: Do not prematurely file a claim for permanent disability benefits. Wait for the company-designated physician to issue a final medical assessment regarding your fitness to work or the degree of your disability within the 120/240-day period.
• Understand Sickness Allowance: You are entitled to sickness allowance equivalent to your basic wage during this period of temporary total disability, up to 120 days (or 240 days if treatment is extended and medically justified). Ensure you are receiving this.
• Document Everything: Keep copies of all medical reports, prescriptions, receipts for medical expenses (if any you had to shoulder initially), and communications with your manning agency and the company doctors.
• Monitor the Timeline: Be aware of the 120-day and potential 240-day timelines. If these periods are about to lapse without a clear assessment, it may be time to consult a lawyer about the next steps.
• Right to Second Opinion (Post-Assessment): If you disagree with the final assessment of the company-designated physician, you have the right to seek a second opinion from a doctor of your choice. However, this is typically done after the company doctor has issued their findings.
• Work-Relatedness: While your immediate concern is the timing of a potential claim, continue to gather any information or evidence that might support the work-relatedness of your condition, as this will be crucial if a disability is indeed declared.

Ricardo, your current status, being 75 days into treatment with the company-designated physician still conducting evaluations, means you are still under temporary total disability. Filing for permanent disability now would likely be premature. It is best to allow the medical process with the company-designated physician to take its course within the legally prescribed periods.

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.