February 27, 2017

G.R. No. 223035

REYNALDO Y. SUNIT, Petitioner

vs.
OSM MARITIME SERVICES, INC., DOF OSM MARITIME SERVICES A/S, and CAPT.
ADONIS B. DONATO, Respondents

ile 1201240-day period in Article

192 (c)(1) and Rule X, Section 2 of

the AREC only applies to tile

company-designated doctor

From the above-cited laws, it is the company-designated doctor who is given the
responsibility to make a conclusive assessment on the degree of the seafarer's
disability and his capacity to resume work within 120/240 days. The parties,
however, are free to disregard the findings of the company doctor, as well as the
chosen doctor of the seafarer, in case they cannot agree on the disability
gradings issued and jointly seek the opinion of a third-party doctor pursuant to
Section 20 (A)(3) of the 2010 POEA-SEC:

SECTION 20. COMPENSATION AND BENEFITS

COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS

The liabilities of the employer when the seafarer suffers work-related injury or
illness during the term of his contract are as follows:

3. x x x
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. (emphasis supplied)

The above-quoted provision clearly does not state a specific period within which
the third doctor must render his or her disability assessment. This is only
reasonable since the parties may opt to resort to a third opinion even during the
conciliation and mediation stage to abbreviate the proceedings, which usually
transpire way beyond the 120/240 day period for medical treatment. The CA,
thus, correctly held that the 240-day period for assessing the degree of disability
only applies to the company-designated doctor, and not the third doctor.

The third doctor's assessment of the extent

of disability must be definite and conclusive

in order to be binding between the parties

Indeed, the employer and the seafarer are bound by the disability assessment of
the third-party physician in the event that they choose to appoint one.
Nonetheless, similar to what is required of the company-designated doctor, the
appointed third-party physician must likewise arrive at a definite and conclusive
assessment of the seafarer's disability or fitness to return to work before his or
her opinion can be valid and binding between the parties.

We point to our discussion in Kestrel Shipping Co., Inc. v. Munar,15 underscoring

that the assessment of the company-designated physician of the seafarer's
fitness to work or permanent disability within the period of 120 or 240 days must
be definite, viz:

Moreover, the company-designated physician is expected to arrive at a definite

assessment of the seafarer's fitness to work or permanent disability within the
period of 120 or 240 days. That should he fail to do so and the seafarer's
medical condition remains unresolved, the seafarer shall be deemed totally and
permanently disabled. (emphasis supplied)

Jurisprudence is replete with cases bearing similar pronouncements of this Court.

In Fil-Star Maritime Corporation v. Rosete,16 We concluded that the company-
designated doctor's certification issued within the prescribed periods must be a
definite assessment of the seafarer's fitness to work or disability:

For the courts and labor tribunals, determining whether a seafarer's fitness to
work despite suffering an alleged partial injury generally requires resort to the
assessment and certification issued within the 120/240-day period by the
company-designated physician. Through such certification, a seafarer's fitness to
resume work or the degree of disability can be known, unless challenged by the
seafarer through a second opinion secured by virtue of his right under the POEA-
SEC. Such certification, as held by this Court in numerous cases, must be a
definite assessment of the seafarer's fitness to work or permanent disability. As
stated in Oriental Shipmanagement Co., Inc. v. Bastol, the company-designated
doctor must declare the seaman fit to work or assess the degree of his
permanent disability. Without which, the characterization of a seafarer's
condition as permanent and total will ensue because the ability to return to one's
accustomed work before the applicable periods elapse cannot be shown.
(emphasis supplied)

In Carcedo v. Maine Marine Phils., Inc.,17 We ruled that the company-designated

physician's disability assessment was not definitive since the seafarer continued
to require medical treatments thereafter. Thus, because the doctor failed to issue
a final assessment, the disability of the seafarer therein was declared to be
permanent and total.

In Fil-Pride Shipping Company, Inc. v. Balasta,18 We declared that the company-

designated physician must arrive at a definite assessment of the seafarer's
fitness to work or permanent disability within the period of 120 or 240 days
pursuant to Article 192 (c)(1) of the Labor Code and Rule X, Section 2 of the
AREC. If he fails to do so and the seafarer's medical condition remains
unresolved, the latter shall be deemed totally and permanently disabled. Thus,
We considered the failure of the company doctor to arrive at a definite
assessment of the seafarer's fitness to work or permanent disability within the
said period in holding that the seafarer was totally and permanently disabled.

A final and definite disability assessment is necessary in order to truly reflect the
true extent of the sickness or injuries of the seafarer and his or her capacity to
resume work as such. Otherwise, the corresponding disability benefits awarded
might not be commensurate with the prolonged effects of the injuries suffered.

Due to the abovestated reasons, We see it fit to apply the same prerequisite to
the appointed third doctor before the latter's disability assessment will be binding
on the parties.

In the case at bench, despite the disability grading that Dr. Bathan issued,
petitioner's medical condition remained unresolved. For emphasis, Dr. Bathan' s
certification is reproduced hereunder:

This is to certify that SUNIT, REYNALDO consulted the undersigned on 17 Feb.

2014 at Faculty Medical Arts Building, PGH Compound, Taft Ave., Manila.

x x xx

Patient is Gr. 9 according to POEA Schedule of disability. Patient is not yet fit to
work and should undergo rehabilitation.19 (emphasis supplied)

The language of Dr. Bathan' s assessment brooks no argument that no final and
definitive assessment was made concerning petitioner's disability. If it were
otherwise, Dr. Bathan would not have recommended that he undergo further
rehabilitation. Dr. Bathan' s assessment of petitioner's degree of disability,
therefore, is still inconclusive and indefinite.

Petitioner's disability is permanent and

total despite the Grade 9 partial disability

that Dr. Bathan issued since his incapacity

to work lasted for more than 240 days from

his repatriation

Petitioner was repatriated on October 6, 2012. After undergoing medical

treatment, the company-designated doctor issued petitioner an interim Grade 10
disability on January 13, 2013. Petitioner was then issued with a final Grade 10
disability by the company-designated doctor on February 15, 2013.

Prior to the February 15, 2013 assessment, petitioner consulted the opinion of a
second doctor, Dr. Garduce, who recommended a Grade 3 disability.

Both parties then consulted a third doctor to assess petitioner's degree of

disability, who assessed petitioner with a Grade 9 partial disability on February
17, 2014, 499 days from his repatriation. In addition to the partial disability
grading, Dr. Bathan likewise assessed petitioner as unfit to work and
recommended him to undergo further rehabilitation.

While We have ruled that Dr. Bathan is not bound to render his assessment
within the 120/240 day period, and that the said period is inconsequential and
has no application on the third doctor, petitioner's disability and incapacity to
resume working clearly continued for more than 240 days. Applying Article 192
(c)(1) of the Labor Code, petitioner's disability should be considered permanent
and total despite the Grade 9 disability grading.
This conclusion is in accordance with Kestrel,20 wherein this Court underscored
that if partial and permanent injuries or disabilities 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, under legal
contemplation, totally and permanently disabled:

Indeed, 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. However, if
those injuries or disabilities with a disability grading from 2 to 14, hence, 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, under legal contemplation, totally and
permanently disabled. In other words, an impediment should be characterized as
partial and permanent not only under the Schedule of Disabilities found in
Section 32 of the POEA-SEC but should be so under the relevant provisions of
the Labor Code and the Amended Rules on Employee Compensation (AREC)
implementing Title II, Book IV of the Labor Code. That while the seafarer is
partially injured or disabled, he is not precluded from earning doing the same
work he had before his injury or disability or that he is accustomed or trained to
do. Otherwise, if his illness or injury prevents him from engaging in gainful
employment for more than 120 or 240 days, as the case may be, he shall be
deemed totally and permanently disabled. (emphasis supplied)

In determining whether a disability is total or partial, what is crucial is whether

the employee who suffered from disability could still perform his work
notwithstanding the disability he met. A permanent partial disability presupposes
a seafarer's fitness to resume sea duties before the end of the 120/240-day
medical treatment period despite the injuries sustained, and works on the
premise that such partial injuries did not disable a seafarer to earn wages in the
same kind of work or similar nature for which he was trained.21

To reiterate, the company doctor or the appointed third-party physician must

arrive at a definite and conclusive assessment of the seafarer's disability or
fitness to return to work before his or her opinion can be valid and binding
between the parties. Dr. Bathan, whose opinion should have bound the parties
despite the lapse of the 120/240 day period, did not make such definite and
conclusive assessment.

It was likewise proved that petitioner's disability persisted beyond the 240-day
period and he was even declared unfit to work by the third doctor himself. As
noted by the NLRC, petitioner failed to have gainful employment for 499 days
reckoned from the time he arrived on October 6, 2012 until Dr. Bathan
conducted his assessment22 due to his injuries. Moreover, Dr. Bathan's
inconclusive assessment and petitioner's prolonged disability only served to
underscore that the company-designated doctor himself failed to render a
definitive assessment of petitioner's disability.

As petitioner was actually unable to work even after the expiration of the 240-
day period and there was no final and conclusive disability assessment made by
the third doctor on his medical condition, it would be inconsistent to declare him
as merely permanently and partially disabled. It should be stressed that a total
disability does not require that the employee be completely disabled, or totally
paralyzed.23 In disability compensation, 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.24

In view of the foregoing circumstances, petitioner is considered permanently and

totally disabled, and should be awarded the corresponding disability benefits.

At this juncture, it bears to recapitulate the procedural requisites under the rules
and established jurispn1dence where the parties opt to resort to the opinion of a
third doctor:

First, according to the POEA-SEC25 and as established by Vergara,26 when a

seafarer sustains a work-related illness or injury while on board the vessel, his
fitness or unfitness for work shall be determined by the company-designated
physician.
Second, if the seafarer disagrees with the findings of the company doctor, then
he has the right to engage the services of a doctor of his choice. If the second
doctor appointed by the seafarer disagrees with the findings of the company
doctor, and the company likewise disagrees with the findings of the second
doctor, then a third doctor may be agreed jointly between the employer and the
seafarer, whose decision shall be final and binding on both of them.

It must be emphasized that the language of the POEA-SEC is clear in that both
the seafarer and the employer must mutually agree to seek the opinion of a third
doctor. In the event of disagreement on the services of the third doctor, the
seafarer has the right to institute a complaint with the LA or NLRC.

Third, despite the binding effect of the third doctor's assessment, a dissatisfied
party may institute a complaint with the LA to contest the same on the ground of
evident partiality, corruption of the third doctor, fraud, other undue means, 27
lack of basis to support the assessment, or being contrary to law or settled
jurisprudence.