8/26/2020 E-Library - Information At Your Fingertips: Printer Friendly Based on the patient's present status, his prognosis is guarded. The specialist recommends surgery with Transforaminal Lumbar Interbody Fusion. However, the patient has refused the surgery. Without the surgery, he has already reached maximum medical improvement. Fitness to work is unlikely to be given within his 120 days of treatment. If patient is entitled to disability, his suggested disability grading is Grade 8 - loss of 2/3 lifting power of the trunk.[50] Consequently, the company-designated physician's assessment should not prevail and must be completely disregarded, since it was merely an "interim" assessment. Being an interim disability grading, the declaration was merely an initial prognosis of petitioner's condition for the time being, which does not fully assess his condition and cannot provide sufficient basis for an award of disability benefits in his favor.[51] Moreover, notwithstanding such interim assessment and declaration of unfitness to work, the company-designated physician failed to indicate the need for further treatment/rehabilitation or medication, and provide an estimated period of treatment to justify the extension of the 120-day period. Evidently, without the required final and definite assessment declaring petitioner fit to resume work or the degree of his disability, the characterization of the latter's condition after the lapse of the 120-day period as total and permanent ensued by operation of law.[52] Besides, petitioner's injury persisted despite the company designated-physician's declaration of partial disability Grade 8. Thus, applying Article 198 (c) (1) of the Labor Code, petitioner's disability should be deemed total and permanent. In this regard, it must be emphasized that in the determination of whether a disability, is total or partial, what is crucial is whether the employee who suffered from disability could still perform his work notwithstanding the injuries he sustained. A permanent partial disability presupposes a seafarer's fitness to resume sea duties before the end of the 120/240-day medical treatment period despite the injuries sustained, and works on the premise that such partial injuries did not disable a seafarer to earn wages in the same kind of work or similar nature for which he was trained.[53] Total disability does not require that the employee be completely disabled or totally paralyzed. In disability compensation, it is not the injury which is compensated, but it is the incapacity to work resulting in the impairment of one's earning capacity.[54] Corollarily, the compliance with the third-doctor referral provision of the 2010 POEASEC is rendered inapplicable, considering that absent a final assessment from the company-designated physician, the seafarer has nothing to contest and the law steps in to conclusively characterize his disability as total and permanent.[55] Neither can the Court subscribe to respondents' claim that petitioner's refusal to undergo surgery can be considered as notorious negligence that would bar the latter from claiming compensation. Notorious negligence has been defined as something more than mere or simple negligence or contributory negligence; it signifies a https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/65474 5/11