The 120/240 days rule in relation to the necessity for the company designated physician to determine the need for further treatment

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  September 15, 2017 (Issue 2017/16)

The 120/240 days rule in relation to the necessity for the company designated physician to determine the need for further treatment
In 2005, the Supreme Court promulgated a decision* which basically reduced the determination of permanent and total disability by mere counting of number of days that the seafarer is under treatment and unable to work.  The Court held that if a seafarer is under treatment and unable to work for more than 120 days, then he is considered to be permanently and totally disabled entitled to maximum disability benefits under the employment contract.  This came to be known as the 120 days rule.
In 2008, the Court in another decision** modified the 120 days rule by ruling that the same may be extended to 240 days.
Decisions thereafter harmonized the 120 days and 240 days ruling.  The Court held that if the company-designated physician is unable to provide a final medical assessment within 120 days, then the seafarer will be considered to have suffered a permanent and total disability.  However, if the doctor requires further treatment of the seafarer which would breach the 120 days, then the treatment may be rightfully extended to 240 days and within that period, the doctor may issue a final assessment.
As such, the guidelines that should be followed in the application of the 120/240 days rule are as follows:
1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him.
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total.
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period.
4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.
Just this 2017, the Supreme Court has applied the 120 days rule in 2 cases*** because the doctor was not able to show any justification as to why the 120 days period should be extended to 240 days.  As such, it is imperative that the company-designated physician is able to justify the need for further treatment in the event that he believes that the 120 days period will be breached so that treatment may be validly extended to 240 days.  
However, the Court has emphasized that the disability assessment that should be issued by the company-designated doctor within the required periods must be a final assessment and not only an interim assessment.  If the assessment issued by the company-designated doctor is merely interim, then the seafarer will still be considered as permanently and totally disabled after the breach of the 120/240 days period.****
* Crystal Shipping, Inc., and/or A/S Stein Line Bergen vs. Deo Natividad, G.R. No. 154798, October 20, 2005
** Jesus Vergara vs. Hammonia Maritime Services, Inc and Atlantic Marine Ltd., G.R. No. 172933, October 6, 2008
*** Career Philippines Ship Management, Inc. / Verlou Carmelino vs. Nathaniel Acub, G.R. No.214965, April 26, 2017;  Paulino Aldaba vs. Career Philippines Ship Management, Inc., Columbia Shipmanagement Ltd., and/or Verlou Carmelino, June 21, 2017
**** Hoegh Fleet Services Phils., Inc. and/or Hoegh Fleet Services AS vs. Bernardo Turallo, Bernardo Turallo vs. Hoegh Fleet Services Phils., Inc. and/or Hoegh Fleet Services AS, G.R. Nos. 230481 and 230500, July 26, 2017
 Supreme Court denies claim as seafarer failed to prove his hypertension is work-related

 Seafarer was hired as Bosun by the company.  Prior to employment, he was declared fit in his pre-employment medical examination (PEME).  Five months into his employment, seafarer complained of dizziness, body malaise and chills.  He was sent to a shore doctor who diagnosed him with uncontrolled hypertension.  For this reason, he was medically repatriated to Manila.  Upon repatriation, the seafarer was referred to the company-designated physicians for examination and treatment and the diagnosis of hypertension was confirmed.  The company-designated physicians likewise determined that seafarer’s condition was not work-related as its cause is multifactorial in origin.  The seafarer’s treatment continued and the company-designated physicians issued an opinion that the “hypertension was not a contraindication to resume work as long as the patient will be compliant with taking of his anti-hypertensive medications and able to achieve adequate blood pressure control”.
Unsatisfied with the findings of the company-designated physicians, the seafarer consulted with his chosen doctor who declared that his illness is work-related/work-aggravated and his condition has not improved.  Also, said doctor opined that the seafarer will not be able to resume his profession with his condition.
Thereafter, the seafarer filed a complaint for payment of disability benefits and damages with the NLRC.  The Labor Arbiter denied the claim as the seafarer failed to prove that his hypertension was work-related and there was no showing that his chosen doctor conducted a thorough medical evaluation.
However, on appeal, the NLRC granted the claim and awarded full disability benefits to the seafarer as it was reasoned out that the stressful work of the seafarer aggravated the condition and that he was not able to go back to work after 120 days.
On the other hand, the Court of Appeals affirmed the ruling of the Labor Arbiter and denied the claim of the seafarer.
The Supreme Court affirmed the denial of the claim.
The findings of the company-designated physicians deserves more credence
The Court noted that, unlike the evaluation made by the company-designated physicians, there is no evidence to prove that seafarer’s doctor’s findings were reached based on an extensive or comprehensive examination. In the medical certificate he issued, seafarer’s doctor diagnosed the seafarer as suffering from "Uncontrolled Essential Hypertension, Hypertensive Cardiomyopathy and Malaise," that his condition did not improve "despite management and medications" and, by reason of which, he is "physically unfit to go back to work." However, aside from the said medical certificate, seafarer failed to present competent evidence to prove that he was thoroughly examined by his doctor. No proof was shown that laboratory or diagnostic tests or procedures were taken.   In fact, seafarer’s doctor did not specify the medications he prescribed and the type of medical management he made to treat the condition. It was not even explained nor justified that seafarer’s hypertension started at work, is essential and work-related and that, by reason of such illness, seafarer is no longer fit to work, Moreover, there was no indication as to the number of instances seafarer consulted his doctor.
In contrast, the various medical certificates and reports by the company-designated physicians were issued in a span of five (5) months of closely monitoring seafarer’s medical condition and progress, and after careful analysis of the results of the diagnostic tests and procedures administered. Hence, the extensive medical attention that the company doctors gave to seafarer enabled them to acquire a more accurate diagnosis of the medical condition and fitness for work resumption compared to seafarer's chosen physician who was not privy to his case from the beginning and appears to have examined him only once.
Need to present substantial evidence
The seafarer argued that under the employment contract, his illness is disputably presumed to be work-related.
In debunking this argument, the Court held that for disability to be compensable under the POEA-SEC, two elements must concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract.  To be entitled to compensation and benefits under the governing POEA-SEC, it is not sufficient to establish that the seafarer's illness or injury has rendered him permanently or partially disabled; it must also be shown that there is a causal connection between the seafarer's illness or injury and the work for which he had been contracted.
ln other words, while the law recognizes that an illness may be disputably presumed to be work-related, the seafarer must still show a reasonable connection between the nature of work on board the vessel and the illness contracted or aggravated.  Thus, the burden is placed upon the seafarer to present substantial evidence that his work conditions caused or at least increased the risk of contracting the disease
In this case, however, seafarer relied on the presumption that his illness is work-related but he was unable to present substantial evidence to show that his work conditions caused or, at the least, increased the risk of contracting his illness. Neither was he able to prove that his illness was pre-existing and that it was aggravated by the nature of his employment. Thus, he is not entitled to any disability compensation.
Julio Espere vs. NFD international Manning Agents, Inc. / Target Ship management PTE Ltd. / etal., G.R. No. 212098, July 26, 2017, Second Dvision, Associate Justice Diosdado Peralta, ponente (Attys. Charles De la Cruz and Pedrito Faytaren, Jr. of Del Rosario & Del Rosario handled for vessels interests)
Update: Zambales/Provincial Coast Watch Environmental Monitoring System User Fee; Petition filed against Ordinance
This is an update on the Zambales Ordinance which we last posted on 21 June 2017.
The Association of International Shipping Lines and Filipino Shipowners Association filed a Petition for Declaratory Relief last 5 May 2017 before the Regional Trial Court of Manila against respondents, the Province of Zambales (as represented by Governor Amor D. Deloso), Sangguniang Panlalawigan (as represented by Vice Governor Angelia M. Cheng) and Xanatos Philippines Corporation.
Aside from the main petition, the petitioners are also asking the Court to enjoin or restrain the Province from implementing the Ordinance until their main Petition is resolved.  The petitioners are arguing that the Ordinance is contrary to international and local laws.
As it would also appear that the Province has not responded to the Petition, the petitioners have prayed that it be declared in default.
We will continuously report on this as the case develops.
We continue to recommend to our clients not to pay any invoices for Coast Watch Environmental Monitoring System User Fee issued by the Province. This Petition further supports our position.

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  • IRR Seafarer's Protection Act
  • Seafarers Protection Act
  • ORDINANCE No. 28 Series of 2015 Zambales, Philippines
  • NLRC MEMO on 3rd Doctor
  • NLRC Rules of Procedure 2011
  • Standard Terms and Conditions of Del Rosario Law
  • POEA SEC - 2010 Amendments
  • POEA Memorandum Circular No. 10 Series of 2010
  • Governing Board Resolution No. 09 Series of 2010

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