Published — June 1, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Read also: Understanding the Rights and Reliefs of Overseas Filipino Workers
The Omnibus Rules and Regulations Implementing Migrant Workers Act defines Overseas Filipino Worker (OFW) as a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a citizen or on board a vessel navigating the foreign seas other than a government ship used for military or non-commercial purposes or on an installation located offshore or on the high seas. There are two classifications of OFWs, they are the following:
- Land-Based – contract workers engaged in offshore activities whose occupation requires that majority of his working/gainful hours are spent on land; and
- Sea-Based – those employed in a vessel engaged in maritime navigation. These are the seamen, or seafarers.
In case a seafarer suffers work- related injury or illness during the term of his contract, he may be able to claim compensation and benefits for his injury or illness. The seafarer must however submit to a post- employment medical examination by a company-designated physician within three (3) working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed a compliance.
In the course of the treatment, the seafarer shall also report regularly to the company-designated physician specifically on the dates as prescribed by the company- designated physician and agreed to by the seafarer. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the benefit.
If the doctor appointed by the seafarer disagrees with 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.
THE THIRD DOCTOR RULE
The conflicting findings of the company’s doctor and the seafarer’s physician often stir suits for disability compensation. As an extrajudicial measure of settling their differences, the Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) gives the parties the option of agreeing jointly on a third doctor whose assessment shall break the impasse and shall be the final and binding diagnosis.
While 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 or 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.
The referral to a third doctor is mandatory when:
- there is a valid and timely assessment by the company-designated physician; and
- the appointed doctor of the seafarer refuted such assessment.
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. (SUNIT vs. OSM MARITIME SERVICES, INC., G.R. No. 223035, February 27, 2017)
FAILURE TO REFER CONFLICTING FINDINGS TO A THIRD DOCTOR
The findings of the company-designated physician prevail in cases where the seafarer did not observe the third-doctor rule. However, if the findings of the company-designated physician are clearly biased in favor of the employer, then courts may give greater weight to the findings of the seafarer’s personal physician. Clear bias on the part of the company-designated physician may be shown if there is no scientific relation between the diagnosis and the symptoms felt by the seafarer, or if the final assessment of the company-designated physician is not supported by the medical records of the seafarer. (C.F. Sharp Crew Management, Inc. v. Castillo, G.R. No. 208215, 19 April 2017)
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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