by Atty. Dennis Gorecho
Disregarding the fit-to-work certification by the company doctor
(Editor’s Note: Atty. Dennis R. Gorecho is a Junior Partner who heads the seafarers’ division of the Sapalo Velez Bundang Bulilan (SVBB) law firm. He obtained his BS Economics (Dean’s Medalist) in 1991 and Bachelor of Laws in 1998 from the University of the Philippines (UP) Diliman. He was admitted to the bar in April 1999. Under his leadership, the SVBB, in partnership with the various maritime organizations and government agencies like the Apostleship of the Sea (AOS) Stella Maris Philippines, actively champions seafarers’ rights through the holding of year-round, nationwide seminars to inform seafarers and their families of their rights and the legal measures to enforce them. He was the president of the Maritime Law Association of the Philippines (MARLAW) for 2016-17, a member of the National Seafarers Day (NSD) committee and one of the judges for the Search for Ten Outstanding Maritime Students of the Philippines (TOMSP). He is a member of the International Pro Bono Network (IPBN) and an active participant in some legislation like the pending Magna Carta for Seafarers. Atty. Gorecho is a legal commentator on maritime issues on print, radio and TV media outfits. He is the Assistant Corporate Secretary of the Intellectual Property Association of the Philippines (IPAP), member of the Intellectual Property Alumni Association (IPAA), member of design and publication committee of the Asian Patent Attorneys Association (APAA), and participant of Intellectual Property training course in Japan sponsored by the Association for Overseas Technical Scholarship (AOTS). He is advisor for the Philippine Institute of Interior Design (PIID) and Firm Representative to the Makati Chamber of Commercial Industry.)
A fit-to-work certification by the company doctor can be set aside by the courts since the inherent merit of the case will still be weighed and duly considered. In the case of OSM Maritime Services vs Nelson Go (G.R. No. 238128 February 17 2021), the Supreme Court disregarded the fit to-work assessment issued by the company doctor noting that it does not mirror the true condition of the claimant in terms of his ability to resume seafarer duties.
The seafarer was diagnosed with Meniere’s Disease which is described as an incurable disorder of the inner ear which causes severe dizziness, ringing sound in the ears, intermittent hearing loss, and feeling of ear pressure or pain. The Supreme Court acknowledged that Meniere’s Disease is work-related as it cited the medical certification issued by the seafarer’s private physician, Dr. Radentor Viernes, which stated that the nature of his employment as Oiler/Motorman onboard the vessel is the cause of his illness and/or aggravated the same. His work as an Oiler/Motorman onboard the vessel exposed him to loud and deafening engine noises, engine heat and harmful chemicals inherent in engine oils. Taking into account his length of service as an Oiler/Motorman, the seafarer’s continued exposure to these health hazards onboard the vessel had contributed mainly to a very great possibility for him to contract the illnesses and/or having aggravated the same while onboard the vessel.
In most seafarer cases for disability or death benefits claims, employers deny their liability to pay benefits by pointing to the medical reports of the company-designated physician that the seafarer’s illness is not work-connected, that he is fit to work or that the compensation is limited to a lower amount based on a low disability grading.
Such assessment is arrived at after the seafarer submits himself to the company doctor for a post employment medical examination within three days from his repatriation.
While the company doctor must declare the nature of a seafarer’s disability, the Supreme Court stressed in several rulings that Courts are not bound by the medical findings of the company doctors.
Said declaration is not conclusive and final upon the court in the determination of compensation cases filed by Filipino seafarers, such as in the case of Mr. Go.
According to the assessment of the company-designated physician Dr. Nicomedes Cruz, the seafarer is fit to return to sea duties which is contrary to the findings of his private physician that he is no longer fit to work as a seaman in any capacity. The overall situation of the seafarer proves that he is unfit for sea duty.
The Court noted that the seafarer failed his Pre-Employment Medical Examination (PEME) because he was found to be unfit for sea duties due to Meniere’s Disease. This means that, ultimately, the seafarer cannot be given the proper clearance to resume his occupation even if he was found to be fit to work by Dr. Cruz. The medical findings in the PEME regarding the seafarer’s unfitness to return to work was also verified and confirmed by the assessment of Dr. Viernes when the latter issued his medical certificate.
Due to the permanent and incurable nature of the Meniere’s Disease which would indefinitely deprive the seafarer gainful employment and the opportunity to earn therefrom, the Supreme Court resolved to grant the seafarer Mr.Go the full amount of disability benefits.
Fit-To Work certifications are even given to seafarers who are still not cured or in essence can no longer be employed.
The findings cannot be taken as “gospel truth” due to the proliferation of obviously biased company doctors. (Wallem vs. NLRC 318 SCRA 623)
The Supreme Court noted in Magsaysay v. Buenaventura (GR 195878. January 10, 2018) that the judicial bodies should not adopt the declaration hook, line and sinker as it may be set aside if it is shown that the diagnosis of the company doctor is attended with clear bias, has no scientific basis or is not supported by the medical records of the seafarer.
The company doctor’s assessment does not evince irrefutable and conclusive weight in assessing the compensability of an illness as the seafarer has the right to seek a second opinion from his preferred physician (Cadornigara v. NLRC, 538 SCRA 363).
Said rulings were based on the prevailing doctrine that “disability is intimately related to the worker’s capacity to earn, and what is compensated is not his injury or illness but his inability to work resulting in the impairment of his earning capacity. Thus, disability has been construed less on its medical significance but more on the loss of earning capacity.” (Ilustricimo v. NYK-Fil Ship Management Inc., GR 237487, June 27, 2018.)