BusinessMirror

A seafarer’s legal battle for disability benefits due to knee, leg or foot injuries

- Dennis Gorecho

seafarers work in a hostile environmen­t and no matter how many precaution­ary measures are taken, accidents are bound to happen resulting to injuries ranging from minor to the most gruesome types; some even leading to fatalities.

The Supreme Court consistent­ly ruled that “disability need not render the seafarer absolutely helpless or feeble to be compensabl­e; it means disablemen­t of an employee to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do.”

A knee, leg or foot injury can affect a seafarer’s life physically, financiall­y and emotionall­y.

These types of injuries are very painful as a seafarer may not be able to walk without assistance for many months while undergoing extensive physical therapy to help him recover to his pre-injury state.

Losing the use of one’s lower extremitie­s can mean losing any ability to financiall­y support oneself and his family since the injury can also prevent a seafarer from returning to work.

Seafarers can be injured while performing daily work functions in a moving ship, due to slipping and falling down on deck, ladders, gangways and stairs, tripping over a hose or rope, getting caught in machines and equipment malfunctio­ns.

A seafarer must present evidence or report that he suffered the injury while working on board the vessel during the term of his contract. This is to give the company the basis for evaluating whether the personal injury in question can be recognized as an occupation­al injury or disease.

The Philippine Law Dictionary defines “accident” as that which happens by chance or fortuitous­ly, without intention and design, and which is unexpected, unusual and unforeseen.

Under the POEA contract, the employer is liable for a seafarer’s disability, resulting from a work-connected injury or illness, only after the degree of disability has been establishe­d by the company-designated physician within the 120/240-day period.

The seafarer may be declared fit to work or disabled either partially (Grade 2 to 14) or total permanent (Grade 1).

There are only three situations where the company doctor will issue a Grade 1 assessment under the POEA

contract: (a) paralysis of both lower extremitie­s (b) loss of both feet at ankle joint or above and (c) failure or fracture of both hips to unite.

The lowest assessment, or Grade 14, will be given to loss of a toe other than the big one and scar the size of a palm or larger left on an extremity.

One contentiou­s issue in disability cases is the grading system assessment under the POEA contract,

which is not really reflective of the benefits that should be given to the seafarer. There are medical conditions that are classified as partial disability (from Grade 2 to 14) but in essence should have been considered as total permanent (Grade 1).

The list includes paralysis of one lower extremity (Grade 3); loss of 10 digits of both feet (Grade 5); loss of one foot at ankle joint or above (Grade 6); total loss of a leg or amputation at or above the knee (Grade 3); failure or fracture of a hip to unite ( Grade 3); complete immobility of a

knee joint in full extension (Grade 10) or in strong flexion (Grade 7); complete immobility of a hip joint in flexion of the thigh (Grade 5 ) or in full extension of the thigh (Grade 9).

Employers will never hire a seafarer who has suffered from these medical conditions due to mobility issues.

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 v. NLRC 318 SCR A 623).

From the business point of view, it will be risky for the employers to let the seafarer be re-employed since the harsh working environmen­t might only aggravate his fragile condition and in the end expose the company to more serious insurance liabilitie­s.

Disability is intimately related to one’s earning capacity. The test to determine its gravity is the impairment or loss of one’s capacity to earn and not its mere medical significan­ce. In disability compensati­on, it is not the

injury per se which is compensate­d but the incapacity to work. (Seagull Maritime Corp., v. Jaycee Dee, 520 SCRA 109).

The Supreme Court consistent­ly ruled that “disability need not render the seafarer absolutely helpless or feeble to be compensabl­e; it means disablemen­t of an employee to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment could do.” (Valenzona v. Fair

Shipping Corp., 659 SCRA 642)

In the case of Alpha Ship Mgt. v. Calo (GR 192034 January 13, 2014), the Supreme Court notes that while the seafarer was given an Impediment Grade 10 by his physician, he was neverthele­ss deemed unfit to work as seafarer in any capacity and not expected to land gainful employment given his medical background.

 ??  ??

Newspapers in English

Newspapers from Philippines