Under the 2000 POEA Standard Employment Contract, disability is compensable only if it is the result of a “work related injury or illness”. This means that the injury arise out, or in the course, of employment. If there is reasonable connection between the injury and the nature of the job, the injury may be presumed to be work related. This is explained in this case of Al.
Al was hired as a “Fitter” by a shipping management company (NYK) on board a Japanese motor tanker under a nine month employment contract. As fitter he performed repair and maintenance works, welding works during the overhauling of generators, engines and other engineering works as directed, by lifting, carrying, pushing, pulling and moving heavy equipment and materials. He constantly performed overtime works and found himself with very few hours rest period. On several occasions due to his excessive, arduous and stressful mental and physical work, he felt slight pains in the back and other parts of the body but ignored them due to the demands of his work and his superiors.
Al had already concluded three contracts with NYK and every time he was scheduled for deployment, he was subjected to medical examination by the company-designated physician and had always been declared fit to work. But after he started working in June 2003 under another contract, he felt slight pains in his back and other parts of his body on several occasions. He thus had consultations with the ship medical officer who prescribed analgesics.
After three months however he was diagnosed by a clinic in Oman to have ureteric colic with urinary tract infection and thus was repatriated to the Philippines. A company designated clinic (SHIP) here diagnosed him to have lumbar strain with plantar fascitis and urinary tract infection. The doctor said that the causes of Al’s conditions are trauma, biochemical stress and repeated motion on a joint. Thus he went into daily physical rehabilitation therapy. Later on after undergoing a MRI and other tests he was deemed fit to resume his sea duties by specialists of SHIP.
Al sought a second opinion from an orthopedic expert who diagnosed him to have lumbar disk protrusion and declared him unfit for further sea duties. The doctor recommended a partial permanent disability with Grade 8 impediment based on the POEA contract. According to the doctor, with more exposure to activities producing back stress, more injuries and disability are to be expected. He said that the repeated trauma such as excessive and strenuous physical activities may play a role in producing back stress, more injuries and disability, hence his advise for Al is to refrain from activities producing torsional stress on the back and those that require repetitive bending and lifting, as he is unfit to resume his sea duties.
But when Al sought to claim illness allowance and disability benefits from NYK, his claim was denied in view of the declaration by the company physician that he was fit to work. NYK argued that according to its doctor, Al’s injury is not work related and could also be attributed to age, genetics, weight, bone disease, infections and unknown factors. Was NYK correct?
No. While it is the company-designated physician who must declare that the seaman suffers a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion. The standard POEA contract and the CBA recognize the prerogative of the seafarer to request a second opinion and, for this purpose, to consult a physician of his choice.
From the findings of Al’s physician, he is entitled to the benefits under the POEA Standard Employment Contract of 2000 Section 20 (B) which makes work-related injuries or illness compensable. In the case at bar, a reasonable connection between Al’s injuries and the nature of his job has been established. The findings of Al’s physician indicate that repeated trauma play a role in producing back stress, more injuries and disability. NYK’s physician herself stated that among the causes of Al’s conditions are traumas, biochemical stress and repeated motion on a joint. Thus it is safe to presume that the arduous nature of Al’s job caused his illness or at least aggravated any pre-existing condition he might have and is therefore work related.
Undoubtedly, Al is entitled to compensation under the POEA Standard Employment Contract. For his permanent partial disability with Grade 8 impediment, he should be paid $16,795 plus attorney’s fees of $1,679.50 (NYK etc, et. al. vs. Talavera, G.R. 175894, November 14, 2008).
Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.
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E-mail at: jcson@pldtdsl.net