Philippine Shipping Update
According to the UK P&I Club, Supreme Court upholds findings of seafarer’s personal doctor, but general rule is that finding of company-designated physician must be respected.
On October 24, 2006, seafarer started to experience severe pain in his lumbar region when he assisted in manually lifting the ship’s anchor windlass motor.
He was seen by a doctor in South Africa and eventually repatriated and placed under the care of the company-designated physicians for further treatment and evaluation.
On May 3, 2007 or after 197 days of treatment, seafarer was assessed with disability Grade 8.
In the interim, the seafarer filed a complaint against his employers on 11 April 2007 (181 days after he was signed off the vessel) claiming full disability benefits.
The Labor Arbiter awarded US$60,000.00 to the seafarer considering that he was already permanently unfit to work having not worked for more than 120 days. T
he NLRC and the Court of Appeals affirmed the decision of the Labor Arbiter. The Supreme Court further affirmed the decision awarding $60,000.
120 days / 240 days rule
The Supreme Court stated that under Section 32 of the POEA-SEC, only those injuries or disabilities that are classified as Grade 1, may be considered as total and permanent disability.
However, if those injuries or disabilities with a disability grading from Grades 2 to 14 which are 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 still considered as totally and permanently disabled. In this particular case, the seafarer had a Grade 8 disability but was unable to engage in gainful employment for more than 120 days, thus, he is considered totally and permanently disabled.
As to the argument that the 240 days instead of 120 days should apply, the Court held that the 240 days rule cannot apply as the seafarer’s claim on April 11, 2007 was made before October 6, 2008 when the Vergara vs. Hammonia ruling on the 240 days was promulgated. Prior to October 6, 2008, the 120 days rule applies.
The Court clarified the 120 / 240 days rule as follows:
seafarer who is unable to work for more than 120 days shall be considered totally and permanently disabled unless the company doctor, before the end of the 120 days, states that he needs further treatment. If the company doctor states that the seafarer needs such further treatment, the period to determine total and permanent disability shall be extended to 240 days.
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Source: the UK P&I Club