An employee’s disability becomes permanent and total when so declared by the company-designated physician, or, in case of absence of such a declaration either of fitness or permanent total disability, upon the lapse of the 120- or 240-day treatment period, while the employee’s disability continues and he is unable to engage in gainful employment during such period, and the company-designated physician fails to arrive at a definite assessment of the employee’s fitness or disability.

Complainant Eleosis V. Calo filed a Complaint for the recovery of total permanent disability, illness allowance, reimbursement of medical expenses, damages and attorney’s fees, against his employer defendant Alpha Ship Management Corporation, and the latter’s principal, Chuo-Kaiun Company Limited.

Previously, complainant was employed under seven employment contracts. on 17 February 2004, he was rehired as Chief Cook aboard MV Iris. “On July 13, 2004, while MV Iris was in Shanghai, China, [complainant] suffered back pain on the lower part of his lumbar region and urinated with solid particles. On checkup, the doctor found him suffering from urinary tract infection and renal colic, and was given antibiotics. When respondent’s condition did not improve, he consulted another doctor in Chile sometime in August 2004, and was found to have kidney problems and urinary tract infection but was declared fit for work on a ‘light duty’ basis.” 

Sometime after, on 19 September 2004, “[complainant] suffered an attack of severe pain in his loin area below the ribs radiating to his groin. At the Honmoku Hospital in Yokohama, Japan, [complainant] was diagnosed with suspected renal and/or ureter calculus. He was declared ‘unfit for work’ and advised to be sent home and undergo further detailed examination and treatment.” Accordingly, he was repatriated.

The company-designated physician examined complainant several times with various medical reports made. Meanwhile, complainant consulted his own doctor sensing that he was not improving. His private doctor opined that that he is “now unfit to resume work as seaman in any capacity.” Thus, complainant filed this complaint.

HELD: Defendants were liable. “The 120-day period may be extended up to 240 days, under Rule X, Section 2 of the Amended Rules on Employees Compensation… [and thus] a temporary total disability becomes permanent when so declared by the company-designated physician within the period allowed, or upon expiration of the maximum 240-day medical treatment period in case of absence of a declaration of fitness or permanent disability.”

The POEA Standard Employment Contract is “not the sole basis for determining their rights in the event of work-related injury, illness or death.” In the said contract, “only those injuries or disabilities that are classified as Grade 1 are considered total and permanent.” Thus, citing jurisprudence, “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 or permanently disabled.”

To be clear, as previously held, “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[s] 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 [sic] 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.”

In summary, “it can be said that an employee’s disability becomes permanent and total when so declared by the company-designated physician, or, in case of absence of such a declaration either of fitness or permanent total disability, upon the lapse of the 120 or 240-day treatment period, while the employee’s disability continues and he is unable to engage in gainful employment during such period, and the company-designated physician fails to arrive at a definite assessment of the employee’s fitness or disability. This is true ‘regardless of whether the employee loses the use of any part of his body.’”

Here, complainant “was repatriated on October 12, 2004 and underwent treatment by the company-designated physician… until October 14, 2005, or for a continuous period of over one year–or for more than the statutory 120-day or even 240-day period. During said treatment period, [the doctor] did not arrive at a definite assessment of [complainant’s] fitness or disability; thus, [complainant’s] medical condition remained unresolved. It was only on July 18, 2006 that [complainant] was declared fit to work by [the physician]. Such declaration, however, became irrelevant, for by then, [complainant] had been under medical treatment and unable to engage in gainful employment for more than 240 days. Pursuant to [jurisprudence], the conclusive presumption that the [complainant] is totally and permanently disabled thus arose.” It is, thus, irrelevant now which of opinions of the two doctors would prevail.

Complainant was entitled to attorney’s fees as he was compelled to litigate. “Where an employee is forced to litigate and incur expenses to protect his rights and interest, he is entitled to an award of attorney’s fees equivalent to ten percent (10%) of the total award at the time of actual payment.”

Citation: G.R. No. 192034, 13 January 2014

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