6/7/2020 E-Library - Information At Your Fingertips: Printer Friendly day period, did not make such definite and conclusive assessment. It was likewise proved that petitioner's disability persisted beyond the 240-day period and he was even declared unfit to work by the third doctor himself. As noted by the NLRC, petitioner failed to have gainful employment for 499 days reckoned from the time he arrived on October 6, 2012 until Dr. Bathan conducted his assessment[22] due to his injuries. Moreover, Dr. Bathan's inconclusive assessment and petitioner's prolonged disability only served to underscore that the company-designated doctor himself failed to render a definitive assessment of petitioner's disability. As petitioner was actually unable to work even after the expiration of the 240-day period and there was no final and conclusive disability assessment made by the third doctor on his medical condition, it would be inconsistent to declare him as merely permanently and partially disabled. It should be stressed that a total disability does not require that the employee be completely disabled, or totally paralyzed.[23] In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity.[24] In view of the foregoing circumstances, petitioner is considered permanently and totally disabled, and should be awarded the corresponding disability benefits. At this juncture, it bears to recapitulate the procedural requisites under the rules and established jurisprudence where the parties opt to resort to the opinion of a third doctor: First, according to the POEA-SEC[25] and as established by Vergara,[26] when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work shall be determined by the company-designated physician. Second, if the seafarer disagrees with the findings of the company doctor, then he has the right to engage the services of a doctor of his choice. If the second doctor appointed by the seafarer disagrees with the findings of the company doctor, and the company likewise disagrees with the findings of the second doctor, then a third doctor may be agreed jointly between the employer and the seafarer, whose decision shall be final and binding on both of them. It must be emphasized that the language of the POEA-SEC is clear in that both the seafarer and the employer must mutually agree to seek the opinion of a third doctor. In the event of disagreement on the services of the third doctor, the seafarer has the right to institute a complaint with the LA or NLRC. Third, despite the binding effect of the third doctor's assessment, a dissatisfied party may institute a complaint with the LA to contest the same on the ground of evident partiality, corruption of the third doctor, fraud, other undue means,[27] lack of basis to support the assessment, or being contrary to law or settled jurisprudence. Petitioner is entitled to attorney's fees elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/62831 12/16