8/27/2020 E-Library - Information At Your Fingertips: Printer Friendly xxxx D. No compensation and benefits shall be payable in respect or any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer. (Emphasis ours) CTI argues that Sales is not entitled to compensation because of his refusal to undergo surgery. As discussed, facts sufficiently show that the back injury of Sales is workrelated and compensable. Sales' back pains occurred during the term of his employment while he was onboard the vessel. This Court also cannot agree with the bare allegations of CTI that Sales must have figured into an accident after his tour of duty. We emphasize that Sales was medically repatriated due to his complaints of back pain during his term of employment and initial findings of his back injury. The theory of CTI is improbable. Further, if, as CTI argues, Sales' refusal for surgery was a breach of duty, then CTI should have immediately stopped the medical treatment of Sales. From the facts, Sales refused to undergo surgery as early as July 2006. Yet, CTI continued observing and treating Sales conservatively through physical rehabilitation. CTI had several opportunities to notify Sales, during his treatment and physical therapy sessions, that not resorting to surgery is a breach and would forfeit his disability benefits. Further, if Sales had indeed abandoned treatment, CTI would not have issued a disability assessment in September 2006 because Sales had not completed his treatment. The foregoing factual incidents do not convince this Court that CTI considered Sales to have breached his duty. This Court, however, agrees with CTI that non-observance of the 120/240-day rule will not automatically entitle a seafarer to permanent and total disability benefits. It has been settled that the application of the 120/240 day rule shall depend on the circumstances of the case, including compliance with the parties' contractual duties and obligations as laid down in the POEA-SEC and/or their CBA, if one exists.[15] While Sales remained unfit for sea duty for more than 120 days, records show that he was still under observation and medical treatment with the company-designated physician. Thus, to require CTI to immediately issue a final disability assessment, while still undergoing treatment, would be premature. Further, although the disability gradings of the company-designated physician and Sales' physician varied, both medical assessments show that Sales only suffered from partial disability. The remarks of both physicians on Sales' conditions were consistent requiring him to continue physical therapy and to have surgery.[16] As discussed and following the provisions of the POEA-SEC,[17] the disability shall not be measured or determined by the number of days a seafarer is under treatment or the number of days in which sickness allowance is paid. The disability gradings as provided in the POEA-SEC must prevail. As to which disability assessments to uphold, this Court finds for CTI. Upon review of the disability assessments, We find that the company-designated physician is more knowledgeable of the conditions of Sales, having monitored and treated the latter from his repatriation in May 2006 to the issuance of the disability assessment in September 2006. Sales' 8-day https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/65532 4/7