Philippine Shipping Update – Manning Industry[Download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., July 30, 2015 (Issue 2015/16)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497



In this issue:

Seafarer’s medical report obtained months after being declared fit to work not given credence

NLRC issues circular on manner of execution of awards in overseas workers cases.

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Seafarer’s medical report obtained months after being declared fit to work not given credence

Seafarer was repatriated due to lower back problems. He was diagnosed by the company-designated physician with a small central disc protrusion with annular fissure formation L5S1; disc annular bulge L4L5.  After continuous treatment, seafarer was declared fit to work by the company-designated physician. However, after seven (7) months, seafarer consulted his own physician who declared him unfit to work with a disability grading of 8 (33.59%) for his injury. On this basis, he filed a complaint for payment of disability benefits.

The Labor Arbiter disregarded the fit to work findings of the company-designated doctor as the seafarer was still experiencing back pains despite treatment and awarded disability benefits.

The NLRC reversed the decision of the Labor Arbiter and held that the power and authority to assess and declare a seafarer’s disability or fitness to work is vested solely on the company-designated physician.  The Court of Appeals sustained the NLRC.

The case reached the Supreme Court which affirmed the dismissal of the complaint.

The Court initially noted that the medical findings of the seafarer’s personal doctor came seven months after he was declared fit to work by the company-designated doctor.  It is unknown as to what transpired between this seven month period and it was the seafarer’s duty to enlighten the courts as to what transpired in these seven months.  Not having performed this duty, this non-disclosure should be interpreted against the seafarer.  The withholding of information as to what transpired during said period opens seafarer’s claim to much speculation and conjecture which makes the grant of his claims for disability benefits untenable.

This is especially true considering that in the medical report of the seafarer’s personal doctor, it was stated therein that he was suffering from neurologic deficit secondary to stroke. The statement indicates that the seafarer has an additional medical condition (stroke) which he never claimed to have suffered during his employment.   Presumably, this stroke was incurred between the fit to work declaration of the company designated physician and the examination of his own chosen physician.  Thus, the stroke not being work-related, it cannot be made the liability of the agency.

Most importantly, the seafarer’s physician worded his assessment in such a way that it appears that seafarer was being declared unfit to work as a seafarer, not due to his back injury, but because of his neurologic deficit secondary to a stroke. Thus, the Court concluded that the seafarer’s physician’s report cannot be a suitable basis for awarding seafarer’s disability claims.

Moreover, the Court said that it is obvious in the report of seafarer’s chosen physician that he saw the seafarer only once while the company-designated physicians treated the seafarer several times, for a period of five (5) months. Further, the seafarer’s chosen physician did not perform any diagnostic test or examination on the seafarer. The Court held that in cases of disability benefits claims, a doctor’s assessment should not be taken at face value. Diagnostic tests and/or procedures as would adequately refute the findings of the company designated physician are necessary for the seafarer’s claims to be sustained.

Lastly, the Court again reiterated that there is a dispute resolution procedure in the POEA Contract.   If the seafarer’s doctor’s findings conflicts  with the findings of the company-designated doctor, the parties must mutually appoint a third doctor.  As such procedure was not followed, the findings of the company-designated physician should stand.


Normilito Cagatin vs. Magsaysay Maritime Corporation and C.S.C.S. International NV; G.R. No. 175795; July 8, 2015; Third Division ; Associate Justice Diosdado Peralta, Ponente . (Attys. Saben Loyola and Herbert Tria of Del Rosario & Del Rosario handled for vessel interests).



NLRC issues circular on manner of execution of awards in overseas workers cases.


In Memorandum Circular 07-01, Series of 2015 dated 2 July 2015, the NLRC chairman clarified that execution of awards in overseas workers cases shall be governed by the procedure laid down in the Omnibus Implementing Rules & Regulations of the Amended Migrant Workers Act.

For purposes of clarity and uniformity, the circular states:

(1)  After the conduct of pre-execution conference, the Labor Arbiter shall, motu proprio or upon motion, issue a writ of execution directing the Sheriff to serve the writ upon the recruitment/manning agency that has the obligation to pay the amount adjudged or agreed upon within thirty (30) days from receipt thereof.

(2)  The Sheriff shall serve the writ of execution upon the recruitment/manning agency within three (3) days from receipt of the same.

(3)   If no payment is made, either by the insurer or the recruitment/manning agency within the thirty (30) day period, or if the amount paid is insufficient to satisfy the amount adjudged or agreed upon, the performance bond or escrow deposit of the recruitment/manning agency with the POEA shall forthwith be garnished.

(4)   In the event that the performance bond or escrow deposit is deficient, execution shall proceed in accordance with Section 9 (a), Rule XI of the 2011 NLRC Rules of Procedure, as amended.

It would appear from the above circular that the procedure now is for the Sheriff to provide the respondent first a copy of the writ of execution.  Within 30 days, the respondent has to pay the judgment award, otherwise, the normal manner of execution (garnishment, levy) will proceed.


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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.
 

Philippine Shipping Update – Manning Industry [Download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., August 28, 2015 (Issue 2015/17)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497



In this issue:

Supreme Court compensates illness as long as employment contributed to some degree to the development of the disease; cause of illness is unknown and presumption of work-relation will apply

Memo on Collection of Provincial Coastwatch Environmental Monitoring System User Fee by the Province of Zambales, Philippines

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Supreme Court compensates illness as long as employment contributed to some degree to the development of the disease; cause of illness is unknown and presumption of work-relation will apply


The company hired the seafarer as a messman.  Prior to his engagement, seafarer underwent a pre-employment medical examination (PEME) which yielded normal results except for a finding of left ventricular hypertrophy in his electrocardiogram test (ECG). Seafarer was thus pronounced fit for sea duty and boarded the vessel for his employment.

During employment, seafarer experienced chest pains.  He was then confined at a port hospital due to chest pain, shortness of breath and back pain. He was diagnosed with Acute Type-B Dissection. Eventually, seafarer was medically repatriated.  Upon arrival in Manila, seafarer was brought directly to the care of the company-designated doctors for further medical evaluation and was diagnosed with dissecting aneurysm.  The company-designated physician issued an opinion that based on the findings in the PEME, seafarer is suffering from a non-work-related illness as the factors of acquiring the illness are congenital in nature.

Seafarer then filed a complaint for disability benefits as he argued that his condition should be considered work-related and he is now incapable of performing work.

The Labor Arbiter granted the claim but the NLRC denied it.  Upon petition, the Court of Appeals sustained the award of the Labor Arbiter.  Such decision was later on affirmed by the Supreme Court.


Seafarer’s work contributed to the development of the illness.

The Court held that seafarer’s work as a messman is not confined mainly to serving food and beverages to all officers and crew; he was likewise tasked to assist the chief cook/chef steward, and thus performed most if not all the duties in the ship’s steward department. In the performance of his duties, he is bound to suffer chest and back pains, which could have caused or aggravated his illness. Seafarer’s strenuous duties caused him to suffer physical stress which exposed him to illness. It is therefore reasonable to conclude that seafarer’s employment has contributed to some degree to the development of his disease.

The stress caused by his job actively contributed to the progression and aggravation of his illness. In compensation cases, it is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.


Illness is disputably presumed to be work-related

The Court further reasoned that the POEA-SEC has created a presumption of compensability for those illnesses which are not listed as an occupational disease.  Together with this presumption is the burden placed upon the claimant to present substantial evidence that his work conditions caused or at least increased the risk of contracting the disease and only a reasonable proof of work-connection, not direct causal relation is required to establish compensability of illnesses not included in the list of occupational diseases. As a causal link was established between seafarer’s employment and his ailment, the presumption now operates in favor of the claimant and the burden is shifted to the company to overcome the statutory presumption which they were unable to do.

The Court was not persuaded that seafarer’s genetic predisposition has caused his ailment and that his smoking habits hastened its development. It explained that the specific cause of aortic dissection is still unknown and the risk factors may only seem to be associated in some way with the disease. Other factors such as working and living under stressful conditions also contribute to its development.

Also, the reliance on the company-designated doctor’s opinion that the illness is not work-related is not availing. Such opinion is inconclusive for purposes of determining the compensability of seafarer’s illness. The assessment was based merely upon a review of the seafarer’s PEME.  It was not based on the post-employment medical examination conducted on the seafarer after his medical repatriation. In the absence of reasonable findings, diagnostic tests and procedures to support the assessment, the same cannot be simply taken at face value. Moreover, the company-designated physician hastily concluded that aortic dissection is hereditary without necessarily considering other varied factors that can contribute to the development of the disease.

Author’s Note: The High Court is reminding the vessel interests that opinions of company-designated physicians can be sustained only if certain criteria are satisfied: (1) opinions must be based on post-employment medical examination and not on mere review of pre-employment medical examination as done in the above case; (2) opinions must be based on reasonable findings, diagnostics tests and procedures to support the opinion; (3) opinions must come from the doctor who personally attended to the seafarer in the course of his treatment; (4) opinions must not be based on mere probability; (5) opinions of company-designated physicians will not be automatically given credence for the simple reason that no contrary opinion was submitted by the seafarer.


Dohle-Philman Manning Agency, Inc Dohle (IOM) Limited and/or Capt. Manolo Gacutan v. Heirs of Andres Gazzingan represented by Lenie Gazzingan, G.R. No. 199568, June 17, 2015, Second Division, Associate Justice Mariano Del Castillo, Ponente.



Memo on Collection of Provincial Coastwatch Environmental Monitoring System User Fee by the Province of Zambales, Philippines

A recent cause of concern for vessels passing through the territorial waters of or docking at any port in the Province of Zambales, Philippines is Ordinance No. 28 Series of 2015 (copy attached) which mandates the collection of a “Provincial Coastwatch Environmental Monitoring System User Fee.” A number of Owners have already received a billing from the said provincial government beginning August 2015.
The ordinance appears to be aimed at monitoring entry of foreign vessels (e.g. Chinese fishing boats) in contested areas and avoid dumping of waste in Philippine waters. Further, it seems to be applicable to both international and domestic vessels and is likewise intended to prevent casualties, and monitor/enforce environmental laws.
The subject ordinance provides that:
-    It applies to “any person or company who owns, leases, controls or operates a vessel.”

-    Area covered is the territorial waters of Zambales (West Philippine sea) within 15 km. to 100 km. from the baseline.

-    The International Association of Marine Aids to Navigation and Lighthouse Authorities (IALA; composed of more than 80 member countries) provides for a “User Pays Principle” which allegedly covers vessels using coastal watch services. The same principle was adopted in the ordinance.

-    Fees and charges in the use of the coastal watch system shall fall under the IALA’s User Pays Principle and “shall be added to the usual and standard shipping fees and charges prescribed by law.”

-    The rates per GWT are as follows: US$0.03580 foreign non-passenger, US$0.04100 foreign passenger, US$8.25 foreign fishing vessel and US$12.57 other foreign commercial ships. For barges US$6,325 (annual) and motorized coal/ore carriers US$7,725 (annual). Domestic vessels are also subject to charges at lower rates.

-    Ships docking at any port in Zambales that have “not paid the appropriate fees and charges after the given grace period shall not be allowed to leave, until such fees and charges are paid and clearance shall be issued by the Office of the Governor.”

-    A private entity Xanatos Philippines Corporation (which appears to be a subsidiary of a Canadian Firm, Xanatos Marine, Ltd.) has been tasked to collect the fees and charges for the Province of Zambales.

-    There is also an “Emission Testing” requirement for all vessels with engine or boiler of 45 horsepower or higher docking at any sea port in Zambales. The Certificate of Emission Compliance ("CEC") issued by an accredited emission testing center is valid for 12 months renewable for the same period.
Based on its wordings, it is unclear whether the ordinance applies only to vessels docking at a Zambales port or even to vessels just passing through its territorial waters. If it applies to the latter case, said ordinance may run counter to a vessel's right of innocent passage under international laws/conventions. Apparently, the ordinance was patterned after similar regulations in other countries applying the IALA User Pays Principle.
We are currently verifying with local authorities the specific coverage of as well other material information about said ordinance. We also seek confirmation from the IG Clubs’ local correspondents in other countries that there are indeed similar regulations so we can raise this in our discussions with the regulators.
We will revert with developments particularly with clarification on the coverage of the ordinance and manner of compliance by those so covered.

Note:  Copy of the ordinance is posted at our website or you may email us for a copy.


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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

 
Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., October 13, 2015 (Issue 2015/18)
“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497


In this issue:

UPDATE:  Memo on Collection of Provincial Coastwatch Environmental Monitoring System User Fee by the Province of Zambales, Philippines

Amendments to the Procedure on Termination of Employment, October 3, 2015

Firm News / New Hires

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UPDATE: Collection of Provincial Coastwatch Environmental Monitoring System User Fee by the Province of Zambales, Philippines
The provincial government of Zambales, Philippines enacted an ordinance mandating the collection of a “Provincial Coastwatch Environmental Monitoring System User Fee” for vessels passing through the territorial waters of or docking at any port in the Province of Zambales.  Serious concerns were then raised against this ordinance.  We have given advice that payment of any fees be deferred while we clarified the ordinance. (see Philippine Shipping Update Issue 2015/17)
Del Rosario & Del Rosario was invited by the Provincial Board of Zambales to attend a hearing on the implementation of the mentioned ordinance.  We raised arguments against the implementation of the ordinance.  The Provincial Board recognized the arguments we raised and advised us that there may be a need to conduct deliberation to further amend the ordinance.  
A Congressional hearing was likewise held and . the issues against the ordinance were again raised.  It was agreed at said hearing that the implementation of the ordinance would be suspended.
The Provincial Board of Zambales as of this writing has not yet passed an amendment to revise, modify or amend said ordinance.  We understand that some Owners have received billings dated September 2015 directly from the Provincial Board of Zambales. We strongly urge that those concerned reply that the legality of the ordinance is still being determined and in the meantime, it is strongly urged that no payment on such billings be made.
This newsletter will give timely updates on the ordinance.

Amendments to the Procedure on Termination of Employment
The Department of Labor and Employment published on October 3, 2015 Department Order No.  147-15 series of 2015, which amended the Implementing Rules and Regulations (IRR) of the Labor Code on termination of employment.

Basically, the amendments sought to include jurisprudence which previously interpreted the provisions of the Labor Code on termination of employment.

Worthy of note is that the amendment now expressly details the procedure and requirements in terminating the employment of a worker which was previously absent in the provisions of the Labor Code.

In said procedure, the amendments now reflect jurisprudential doctrines on procedural due process in the termination of employment.  The requirements are:

1.    There must be a first written notice which should contain:

a.    The specific causes of grounds for termination under the Labor Code and company policies, if any.
b.    Detailed narration of facts and circumstances that will serve as basis for the charge against the employee.  General description of the charge will not suffice.
c.    A directive that the employee is given an opportunity to submit a written explanation within a reasonable period.  The term “reasonable period” has been construed to be at least five (5) calendar days from receipt of the notice to study the allegations, gather date and information, consult and/or be represented by counsel or the union and develop his defense.

2.    After serving the first notice, the employer should afford the employee with ample opportunity to be heard and defend himself with the assistance of a representative if he so desires.  The term “ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him and submit evidence in support of his defense, whether in a hearing, conference or some other fair, just and reasonable way.  A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist, or a company rule or practice requires it, or when similar circumstances justify it.

3.    After determining that the termination of employment is justified, the employer shall serve a written notice to the employee of the termination indicating the following:

a.    all the circumstances  involving the charge against the employee had been considered, and,
b.    the grounds have been established to justify the severance of the employee from his employment.

4.    Said notices shall be personally served on the employee or to his last known address.

The amendments will take effect on 18 October 2015 as it was published on 3 October 2015.

Author’s Note:  The Labor Code and its implementing Rules and Regulations were primarily designed for land based domestic employment.  Nevertheless, the provisions of said law are deemed to be part of any employment contract including the POEA Contract.  

The POEA Contract provides for its own rules on the procedure for termination of employment which is basically in harmony with the above-mentioned procedure.  The primary difference is that in the POEA The POEA Contract provides for its own rules on the procedure for termination of employment which is basically in harmony with the above-mentioned procedure.  The primary difference is that in the POEA Contract, there is no minimum number of days afforded to the seafarer to reply to a notice of violation unlike in the amended rules that the employee should be given at least 5 days to provide his written explanation to the charges against him.  While the procedure of the Labor Code should be complied with at all times, we believe that its application to the employment of seafarers on-board ocean-going vessels should be based on practicability and reasonableness considering the peculiar circumstances of said employment.



Firm News / New Hires

Arturo T. Del Rosario Jr. elected IPAP President for 2015 – 2017

Del Rosario Law’s Co-Managing Partner Arturo Del Rosario, Jr. was elected as President of the intellectual Property Association of the Philippines (IPAP) for a three-year term starting 2015.  IPAP is the leading organization for Intellectual Property Law practitioners in the Philippines.   IPAP has remained committed to every aspect of the protection of intellectual property, and has assisted in the drafting of legislation and implementing rules relating to the many facets of Intellectual Property Law for the Congress of the Philippines, Intellectual Property Office of the Philippines, Optical Media Board, and other government agencies.  
IPAP is the only officially recognized Philippine organization by the Asian Patent Attorney Association (APAA), and the Association Internationale Pour la Protection de la Propriete Intellectuelle (AIPPI).


Ruben Del Rosario speaks at GARD New York Seminar

Del Rosario Law’s Co-Managing Partner, Ruben Del Rosario was invited to speak at the GARD P & I Club seminar entitled “Persons of Interest”.  Ruben spoke on Philippine updates relating to seafarers’ cases.  The seminar was recently held  at the New York Yacht Club and was well attended by several stakeholders in the industry.


Charles Jay Dela Cruz elected to PNBC Board

Partner Charles Jay Dela Cruz was elected as a member of the Board of Trustees of the Philippines Norway Business Council (PNBC) for the term 2015-2016. Charles is a preferred legal advisor to many Norwegian interests particularly in the maritime field. His long experience and expertise augurs well for the organization.

PNBC is a non-stock, non-profit organization which aims to promote closer economic and friendly relations between Philippines and Norway and provides a forum for exchange of views on business and commercial dealings in both domestic and international setting.   


Joseph Rebano elected as trustee in the Philippine Bar Association

Partner Joseph Manolo  Rebano is elected once more to be a member of the Board of Trustees of the Philippine Bar Association (PBA), the oldest voluntary national organization of lawyers in the Philippines.  Past presidents of PBA are Firm founder Arturo M. Del Rosario Sr. and current co-Managing Partner Arturo T. Del Rosario Jr.


Herbert Tria is a member Technical Working Group formed by the POEA

The POEA is currently reviewing the proposed amendments to the 2003 POEA Rules and Regulations. Partner Herbert Tria will sit as a member of the Technical Working Group formed by the POEA to review the amendments.


New Hires


Del Rosario welcomes its new lawyers

Del Rosario & Del Rosario would like to congratulate and welcome its new lawyers to the firm.
Eunice Carmela M. Ariate, has a degree of Bachelor of Science, Major in Accountancy from San Beda College, Manila and a Bachelor of Laws degree also from the same school. She is likewise a Certified Public Accountant.
Rene G. Pilapil Jr. has a degree of Bachelor of Arts, Major in Political Science from the De La Salle University, Manila and a Juris Doctor of Laws degree from the same school.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., October 26, 2015 (Issue 2015/20)
“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

In this issue:

Supreme Court denies claim for total disability benefits based on 120/240 days; findings of doctors are incomparable as issued several months apart
Supreme Court affirms opinion of company-designated physician; did not apply CBA’s permanent unfitness clause

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Supreme Court denies claim for total disability benefits based on 120/240 days; findings of doctors are incomparable as issued several months apart

Seafarer, after passing his pre-employment medical examination, was engaged as Able Bodied Seaman by the company.

During employment, and while discharging his duties, seafarer met an accident which injured his left leg. He was brought to a shore hospital and was given first aid treatment.  Thereafter, he was repatriated for further medical management sometime May 2000.

The company referred the seafarer to its designated physician who recommended that his knee should be operated on.  Seafarer underwent surgery known as Open Reduction and Fixation with Intramedullary Nails.  After a series of evaluations, on 21 September 2000, the attending physician issued a final evaluation certificate wherein she categorically cleared respondent from his injury and allowed him to resume his work even with implants, which can be removed after a year and a half.

On 2 May 2001, seafarer, through counsel, wrote the company, claiming for full disability benefits amounting to US$60,000.00. He claimed that the injury suffered while working for the company "will not permit him to work again" as a seaman which rendered him totally and permanently disabled.

After his demand went unheeded, the seafarer filed a complaint for disability benefits, damages plus attorney's fees alleging that: (1) he continues to suffer from the injury which caused his repatriation (2) an independent physician had suggested a disability grade of 13 for his injury, and, (3) he is suffering from permanent medical unfitness which entitles him to at least US$3,360 up to a maximum ofUS$60,000.  The seafarer further alleged that although he was pronounced fit to work, he can never be considered fit for employment if he still has implants on his leg since he can no longer carry heavy objects while on board a vessel.

On the other hand, the company averred that seafarer is not entitled to any disability benefit as he was declared fit to work by the company designated physician and that under the provisions of POEA Contract, seafarer's disability can only be assessed by the company designated physician and such declaration binds him as said doctor is the most qualified to determine the precise condition of seafarer's health for having monitored and medically managed the condition.

Both the Labor Arbiter and the NLRC found in favor of the company and dismissed the claim.  However, the Court of Appeals granted the seafarer US$60,000 disability benefits on the ground that seafarer was unable to work for more than 120 days and is thus considered as permanently and totally disabled based on law.

When the case reached the Supreme Court, the company’s position was upheld although the Court awarded partial disability benefits equivalent to grade “13” under the POEA Contract.

120/240 days

The Court set aside the conclusion of the Court of Appeals which entitled the seafarer to maximum disability benefits on the basis of his inability to work after 120 days.  The Court again reminded that the 120 days rule is not a magic wand that once waved will automatically entitle the seafarer to maximum disability benefits.  The rule is if the employer's failure to make a declaration on the fitness or disability of the seafarer is because of the latter's need for further medical attention, the period of temporary and total disability may be extended to a maximum of 240 days. From May 2000 to September 21, 2000, 144 days had lapsed before seafarer was declared fit to work. Concededly, said periods have already exceeded the 120-day period. However, records show that seafarer underwent a series of evaluations which implied requirement of further medical treatment, thus, justifying the extension of the 120-day period. The company-designated doctor had a period of 240 days within which to make a finding on his fitness for further sea duties or degree of disability.

No sense in comparing the medical assessment of the company-designated doctor and seafarer’s personal doctor

The Court noted that while the POEA Contract mandates the company-designated doctor to determine and assess the medical condition of the seafarer, the latter does not automatically bind himself to the medical report issued by said doctor and neither are the labor tribunals and the courts bound by said medical report. Its inherent merit will be weighed and duly considered. The claimant may dispute the medical report issued by the company-designated physician by seasonably consulting another physician. The medical report issued by said physician will also be evaluated by the labor tribunal and the court based on its inherent merits.  

In this case, seafarer failed to dispute the declaration of fit to work by the company-designated physician by not timely consulting another physician.  The seafarer took roughly eight months before disputing the finding of the company-designated doctor by writing the company his claim for disability benefits. Then, after his demand went unheeded, he challenged the doctor's competency and the correctness of the findings on the basis of an evaluation made 10 months after he was certified fit to work by the company-designated physician.

The Court stated that it makes no sense to compare the certification of a company-designated physician with that of an employee appointed physician if the former is dated seven to eight months earlier than the latter - there would be no basis for comparison at all. In this case, the certification of the company-designated physician was ten months earlier than that of the appointed physician of the seafarer. Thus, there would be no basis for comparison.

Court awarded partial disability benefits

In a very short discussion, the Court awarded the seafarer with US$3,360 disability benefits based on disability grade “13” under the POEA Contract.  The Court held that both the company-designated physician and seafarer's own physician concluded that seafarer’s left tibia was fractured and that it was healed after the surgery. Under the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted in Section 30 of 1996 POEA SEC, the "slight atrophy of calf of leg muscles without apparent shortening or joint lesion or disturbance of weight-bearing line" suffered by seafarer has a corresponding Impediment Grade of 13.

Thus, seafarer is entitled to US$3,360 or its equivalent in Philippine currency at the exchange rate prevailing during the time of payment.

Author’s Note:  There appears to be some inconsistency in the manner that the Court decided this case.

On one hand, the Court ruled that the seafarer is not entitled to permanent and total disability benefits because the company-designated doctor declared him fit to work within 240 days.  The Court likewise held that there is no sense in comparing the findings of the company-designated doctor and seafarer’s personal doctor.

On the other hand, the Court, in apparently sustaining the grade “13” assessment issued by seafarer’s personal doctor, awarded disability benefits of US$3,360., despite the fact that seafarer was declared fit to work by the company-designated doctor.

Unfortunately, the Court did not expound on their decision to award partial disability benefits aside from the fact that both company-designated doctor and seafarer’s doctor gave an assessment that seafarer’s left tibia was fractured and that it was healed after the surgery.  

Acomarit Phils., and/or Acomarit Hong Kong Limited v. Gomer Dotimas, G.R. No. 190984, August 19, 2015, Third Division, Associate Justice Diosdado Peralta, Ponente. (Attys. Aldrich Del Rosario and Charles Jay Dela Cruz of Del Rosario & Del Rosario handled for vessel interests).

Supreme Court affirms opinion of company-designated physician; did not apply CBA’s permanent unfitness clause

Seafarer was hired by the company as Chief Steward/Cook after being declared fit in the required pre-employment medical examination (PEME for short).  However, it was noted in the PEME that he was a case of class “B” diabetes mellitus which is controlled with medications.  His employment was governed by the terms of the POEA Standard Employment Contract with an overriding AMOSUP  CBA.
During employment, seafarer suffered severe headache accompanied by fever and dizziness. He was treated in a foreign port and was diagnosed with hypertension and diabetes mellitus.  Seafarer was eventually repatriated for further treatment by the company-designated doctor.  After three months of treatment, seafarer was declared fit to work.  

However, seafarer, through counsel, requested the company that he be referred to another doctor for medical opinion.  The company obliged and referred seafarer to another doctor.  Said doctor opined that seafarer is still suffering from hypertension and diabetes mellitus and had poor compliance with intake of medications.  A grade “12” partial disability was issued to the seafarer.  In line with the disability assessment of the doctor, the company offered to compensate the seafarer with US$5,225.  
It appears however that prior to the assessment, the seafarer already consulted his personal doctor who assessed him with a grade “5” disability.  As such, the seafarer claims full disability benefits of US$60,000 under the CBA as he considers himself permanently unfit to work already.

The Labor Arbiter granted the claim of the seafarer and upheld the findings of seafarer’s personal doctor as unbiased.  The award of US$60,000 was issued based on the permanent unfitness clause in the CBA.  Said decision was further upheld by the NLRC.

With the Court of Appeals, the award was limited to US$5,225 which is the equivalent of the company-designated doctor’s grade “12” assessment.  This was affirmed by the Supreme Court.

Findings of company-designated physician deserves more credence and weight

In adopting the findings of the Court of Appeals, the Supreme Court held that the determination of whose medical findings, including disability assessment, should be given more weight would depend on the length of time the patient was under treatment and supervision, results of laboratory procedures used as basis for diagnosis and recommendation, and detailed knowledge of the patient's case reflected in the medical certificate itself.

A comparison of the medical certificates issued by the company-designated doctor and seafarer’s personal doctor reveals that the former's findings were based on results of certain laboratory procedures such as urinalysis and chest x-ray, while that of the latter merely stated the usual expected long term complications associated with diabetes mellitus.

The present target organ in seafarer's case was determined by the company-designated doctor to be the heart and eyes (hypertensive retinopathy), while the seafarer’s personal doctor plainly indicated the lifelong medications are necessitated by his "HPN and DM" and that long term complications involve the heart, brain and kidneys. Further, while seafarer’s doctor’s diagnosis of uncontrolled diabetes mellitus and essential hypertension was based only on the patient's age belonging to high risk group, the company-designated doctor attributed the patient's poorly-controlled diabetes mellitus and essential hypertension to "non-compliance with the intake of medicines" considering his earlier medication and treatment under the first company-designated doctor where he was declared "fit to work."

The Court found the generalized statements of seafarer’s personal doctor not sufficient compared to a more detailed medical assessment of the company-designated doctor based on actual laboratory results and recent medical history of the seafarer.

Inapplicability of the CBA

The CBA covering the employment of the seafarer states:

Permanent Medical Unfitness

A seafarer whose disability is assessed at 50% or more under the POEA Employment Contract shall, for the purpose of this paragraph as regarded as permanently unfit for further sea service in any capacity and entitled to 100% compensation, i.e., US$80,000.00 for officers and US$60,000.00 for ratings.

Furthermore, any seafarer assessed at less than 50% disability under the Contract but certified as permanently unfit for further sea service in any capacity by the company doctor, shall also be entitled to 100% compensation

The Court held that said provision will not benefit the seafarer considering that he was only assessed with a grade “12” disability – which is less than 50% - by the company-designated doctor and there was no finding that he is permanently unfit.  In fact, the company-designated doctor was of the opinion that with proper compliance with medications and lifestyle changes, is illnesses will be brought under control at the appropriate time.

Author’s Note:  While other Supreme Court decisions had considered diabetes mellitus as an illness which is not work-related, such issue was not discussed here as this involved the 1996 POEA Contract where work-relation was not considered as a requirement for compensability.

Prudencio Caranto v. Bergesen D.Y. Phils. and/or Bergesen D.Y.  A.S.A., G.R. No. 170706, August 26, 2015, Third Division, Associate Justice Diosdado Peralta, Ponente.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., November 3, 2015 (Issue 2015/21)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

In this issue:

UPDATE: Collection of Provincial Coastwatch Environmental Monitoring System User Fee by the Province of Zambales, Philippines
Supreme Court denies claim based on stomach cancer as no substantial evidence to prove work-relation

Firm News

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UPDATE:  Collection of Provincial Coastwatch Environmental Monitoring System User Fee by the Province of Zambales, Philippines
This is an update on the above Ordinance of the Province of Zambales.
The Filipino Shipowners Association (FSA) has requested Congress to further endorse the matter to the Department of the Interior and Local Government (DILG) to seek the immediate revocation of the Ordinance.   FSA is likewise seeking for the cancellation of any and all invoices that have been issued by the Province to all shipowners and shipping companies.  
In view of the above, we maintain that those who receive billings reply that the legality of the ordinance is still being determined and that in the meantime, no payments should made on the said billings.
As of this writing, the Province of Zambales has not issued any amendment or revision to the Ordinance.
This newsletter will give timely updates on the ordinance.

Supreme Court denies claims based on stomach cancer as no substantial evidence to prove work-relation

After passing the pre-employment medical examination (PEME), seafarer was engaged as chief cook on-board the vessel. Four months into his employment, seafarer experienced vomiting, anorexia, weight loss, and palpitations followed by dizziness and a feeling of lightheadedness.  As such, he was medically repatriated for examination and treatment.

Upon examination, the company-designated physician diagnosed the seafarer with stomach cancer.  The doctor further opined that said condition is not work-related as its risk factors included age, diet rich in saturated fat, fatty acid, linoleic acid, and genetic predisposition.

On the other hand, seafarer alleged that his work as chief cook involved food intake which contributed to or aggravated his gastric cancer. He claimed that although the cause of gastric cancer was unknown, there was speculation that smoked food may be promoting factors.  Seafarer further invoked the presumption laid down in the provision of the POEA Contract that his illness was work-related.  As he passed the PEME, he argued that the company was now estopped from claiming that he was unfit to work prior to his deployment or that he did not contract his illness aboard the vessel.

The claim was brought before the Labor Arbiter who denied the same for lack of merit.  Such decision was affirmed on appeal by the NLRC.  However, the Court of Appeals took a different view and held the company liable for payment of full disability benefits.

When the case reached the Supreme Court, the award was stricken down.  

The Court held that a person who claims entitlement to benefits provided by law must establish his right thereto by substantial evidence or “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion”. The Court cannot grant a claim for disability benefits without such substantial evidence because to do so would be offensive to due process. Hence, the burden is on the seafarer to prove that he suffered from a work-related injury or illness during the term of his contract.

In this case, the seafarer failed to discharge this burden. He failed to prove the required causal connection between his stomach cancer and his work as chief cook aboard the vessel.

In his submissions, seafarer admitted that the cause of stomach cancer was unknown, but stressed that there is speculation that smoked food may be promoting its development; that his illness is presumed to be work-related; and that since he had passed the PEME, this estopped the company from claiming that he was unfit to work prior to his deployment or that he did not contract his illness on board the vessel.

The Court noted that the records of the case would only show that seafarer was afflicted with stomach cancer plus the argument that his work caused or aggravated his stomach cancer.  Only general statements were made on work-relation of the illness which was considered to be self-serving because they are unproved or uncorroborated allegations that simply raised the possibility that seafarer’s stomach cancer could have been or might have been work-related. Even if the seafarer erects his claim on the probability of work-connectedness, such claim would still fail.  Probability of work-connection must at least be anchored on credible information and not on self-serving allegations.

On the other hand, the company-designated physician opined that stomach cancer may be more often multi-factoral in origin involving both inherited predisposition and environmental factors and that it is not work-related. In the absence of a second opinion from seafarer’s own physician of choice, the Court cannot arbitrarily disregard the finding of the company-designated doctor.  As said opinion was unopposed and uncontradicted by equally credible and trustworthy countervailing substantial evidence from the claimant, the Court is not at liberty to reject, with no show of reason, the testimony of the company-designated physician.

In addition, it cannot be pointed out that seafarer’s successfully passing the PEME should be basis for the conclusion that he acquired his illness on board the vessel. This is a non-sequitur. The PEME conducted upon a seafarer would not or could not necessarily reveal or disclose his illness because such examination is not at all fool-proof or thoroughly exploratory.

Philippine Transmarine Carriers, Inc. and Norwegian Crewing Management v. Julia Aligway (as substitute for her deceased husband Demetrio Aligway, Jr.), G.R. No. 201793, September 16, 2015, Second Division, Associate Justice Mariano Del Castillo, Ponente.  

Firm News

Del Rosario Law / Del Rosario Pandiphil exchange program with GARD P & I

In line with the exchange training program between Del Rosario Law / Del Rosario Pandiphil, Del Rosario Partner Denise Cabanos and Del Rosario Pandiphil Senior Claims Executive Rhodylyn De Torres visited GARD P & I in Arendal, Norway to attend the one week “Introduction to Marine Insurance Course” given by the GARD Academy.   

Denise and Rhodylyn likewise spent a one week immersion/interaction program with the People Claims Department of GARD P & I.

Prior to proceeding to Arendal, Denise and Rhodylyn visited GARD Oslo and Skuld Oslo where they likewise had interactive meetings.

The Del Rosario Law / Del Rosario Pandiphil – GARD P & I exchange program aims to enrich the cooperation and knowledge between the two companies.

Many thanks to GARD P & I for the warm reception and hosting Denise and Rhodylyn during their stay in Arendal.

Joseph Rebano speaks at Japan P & I Loss Prevention Seminar
DelRosarioLaw Partner Joseph Rebano was a guest speaker at the Japan P & I Loss Prevention Seminar in Manila which was held at the Maranaw Luzon Shipping Co., Inc. Training Center on 23 October 2015.  Joseph’s topic was “Updates and Jurisprudence on Health Issues on Ships” and the seminar was attended by senior crew and managers from Daichi Chuo Kisen Kaisha, Daichi Chuo Marine, Philippine Standard Shipmanagement Inc, Maranaw Luzon Shipping Co., IMS Philippines Maritime Corp, and NS United Marine Philippines Inc.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., November 20, 2015 (Issue 2015/22)

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

In this issue:

Supreme Court denies claim for full disability benefits by malingering seafarer

Supreme Court rules cardiovascular disease is compensable as it is listed as an occupational disease under the POEA Contract

Firm News

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Supreme Court denies claim for full disability benefits by malingering seafarer

Seafarer was hired as Able Bodied Seafarer on board the vessel.  During his employment, seafarer complained of intermittent pain on the left buttock radiating to the lower back and left groin. When he was examined in a port clinic, he was diagnosed with “acute lumbago with left sided sciatica r/o disc prolapsed.” He was declared unfit for duty and later on repatriated for examination and treatment by the company-designated doctor.  

The company designated doctor found seafarer to be suffering from “paralumbar spasm and limitation of movement due to pain.” He prescribed medication and physical therapy at three sessions per week. Seafarer was continuously examined and everytime, he would report extreme pain. An MRI scan was recommended as well as epidural steroid injection and further physical therapy. The MRI results revealed generally normal findings.  However, the seafarer still complains of pain.  

The company-designated doctor requested that the seafarer undergo EMG-NCV testing.  When the results came out, the company-designated doctor stated that the low back pain intensity is not commensurate with the alleged symptoms of back pain so that a Provocative Discography is recommended.  Seafarer then underwent Provocative Discography where the findings again were that the pain complained of is not commensurate with the Discography.  It was further noted by the specialist that as the pain is not commensurate with the discography, personality reasons should be evaluated to rule out malingering and seafarer was advised to undergo the Minnesota Multiphasic Personality Test for this purpose. Seafarer took the Minnesota Multiphasic Personality Inventory and the results showed that there are indicators that seafarer is malingering and exaggerating his symptoms.  On the 127th day of treatment, the company-designated doctor suggested a disability grade “11” to the seafarer.

The seafarer consulted other doctors where he was assessed with grade “6” disability due to the pain he is experiencing. On this basis, the seafarer filed a complaint for disability benefits.

The Labor Arbiter awarded full disability benefits to the seafarer as his treatment lasted for more than 120 days and he was not yet declared fit.  The NLRC however modified said award and held that seafarer is entitled only to US$7,465 which is the equivalent of a grade “11” disability issued by the company-designated doctor.  On the other hand, the Court of Appeals affirmed the reasoning of the Labor Arbiter in awarding full disability benefits to the seafarer.  Upon reaching the Supreme Court, it was held that seafarer is entitled only to US$7,465 disability benefits.

The Supreme Court again explained that the 120 day period to assess the medical condition of the seafarer may be extended up to 240 days if further treatment is required.  Here, the assessment that seafarer is suffering from a grade “11” disability issued by the company-designated doctor within the 240 day period should be considered.

The Court likewise noted that after obtaining a second medical opinion, the seafarer did not request for the appointment of a third doctor, in accordance with the POEA-SEC, whose decision shall be final and binding on the parties.  Such misstep should prove costly to the seafarer.  Since seafarer was the one pursuing a claim, then it was he who should have taken the initiative to secure the opinion of a third physician prior to seeking intervention by the labor tribunals.  Seafarer’s disregard for the conflict resolution procedure in the POEA-SEC would only mean that the company-designated doctor’s assessment stands.

On a last note, the Court held that there was no reason to doubt the company-designated doctor’s medical opinion regarding seafarer’s condition. Prior to his final declaration, he took pains to address seafarer’s condition and did his best to reconcile the conflicting medical evidence with seafarer’s declared symptoms. His objective resolve led him so far as to require seafarer to undergo a comprehensive battery of tests – EMG NCV test, provocative discography, and even MMPI-2 – just to make sure that seafarer’s complaints are addressed, while at the same time ensure that an objective diagnosis of his illness is obtained. There is thus merit in the company-designated doctor’s finding that seafarer is malingering; medical evidence obtained after the battery of tests is to the effect that seafarer’s supposed excruciating back pain is not supported by or commensurate to the results of the provocative discography and MMPI-2 tests. Being scientific medical procedures, the accuracy and reliability of these tests cannot be doubted; besides, they have not been questioned in these proceedings.


Maersk Filipinas Crewing, Inc./A.P. Moller A/S v.Rommel Rene Jaleco, G.R. No.201945, September 21, 2015, Second Division, Associate Justice Mariano Del Castillo, Ponente.

Supreme Court rules cardiovascular disease is compensable as it is listed as an occupational disease under the POEA contract

Seafarer was engaged as Chief Cook on-board the vessel.  Prior to embarkation, the seafarer was declared fit to work in his pre-employment medical examination. During employment, seafarer complained of breathing difficulty, weakness, severe fatigue, dizziness, and grogginess. Upon referral to a portside hospital, he was recommended for medical repatriation. Following his repatriation, seafarer was referred to the company designated physicians for further evaluation and medical treatment. After several tests, he was diagnosed with "Hypertensive Cardiovascular Disease" and "Diabetes Mellitus II".

Seafarer then filed a complaint for disability benefits arguing that his illnesses are work-related/work-aggravated as confirmed by his personal doctor.  The company rejected the claim on the basis that seafarer’s diabetes mellitus is not work-related and that his hypertensive cardiovascular disease was a result of the diabetes which would also make it not related to his work.

The Labor Arbiter granted the claim of the seafarer which was affirmed by the NLRC.  The Court of Appeals though dismissed the complaint.  On further petition, the Supreme Court affirmed the NLRC’s award of disability benefits.

The Supreme Court held that the POEA-SEC defines "work-related illness" as any sickness resulting to disability or death as a result of an occupational disease listed in the POEA Contract with the conditions set therein satisfied:

1.         The seafarer's work must involve the risks described herein;
2.         The disease was contracted as a result of the seafarer's exposure to the described risks;
3.         The disease was contracted within a period of exposure and under such other factors necessary to contract it; and
4.         There was no notorious negligence on the part of the seafarer.

Further, Section 32-A (11) of the POEA-SEC expressly considers Cardiovascular Disease (CVD) as an occupational disease if it was contracted under any of the following instances, to wit:

(a)        If the heart disease was known to have been present during employment, there must be proof that an acute exacerbation was clearly precipitated by the unusual strain by reasons of the nature of his work.
(b)        The strain of work that brings about an acute attack must be sufficient severity and must be followed within 24 hours by the clinical signs of cardiac insult to constitute causal relationship.
(c)        If a person who was apparently asymptomatic before being subjected to strain at work showed signs and symptoms of cardiac injury during the performance of his work and such symptoms and signs persisted, it is reasonable to claim a causal relationship.

Consequently, for CVD to constitute as an occupational disease for which the seafarer may claim compensation, it is incumbent upon said seafarer to show that he developed the same under any of the  three conditions identified above.

Records reveal that sometime during the performance of his duties as Chief Cook on board the vessel, seafarer complained of breathing difficulty, weakness, severe fatigue, dizziness, and grogginess, necessitating portside medical intervention and consequent medical repatriation. Shortly after
repatriation, he was diagnosed with Hypertensive Cardiovascular Disease, also known as hypertensive heart disease, which refers to a heart condition caused by high blood pressure.
Seafarer's condition was apparently asymptomatic  since he manifested no signs and symptoms of any cardiac injury prior to his deployment onboard and was, in fact, declared fit for sea duty following his PEME. Notably, seafarer's physical discomforts on-board the vessel already bore the hallmarks of CVD for which he was eventually diagnosed upon his repatriation. The said diagnosis was recognized by both the company-designated doctors and seafarer's own doctor, and was well ¬documented. Thus, absent any showing that seafarer had a pre-existing cardiovascular ailment prior to his embarkation, the reasonable presumption is that he acquired his hypertensive cardiovascular disease in the course of his employment pursuant to Section 32-A (11) (c) of the POEA-SEC, which recognizes a "causal relationship" between a seafarer's CVD and his job, and qualifies his CVD as an occupational disease.

The fact that seafarer was also diagnosed as having Diabetes Mellitus II was of no moment since the incidence of a listed occupational disease, whether or not associated with a non-listed ailment, is enough basis for compensation, although modern medicine has in fact recognized that diabetes, heart complications, hypertension and even kidney disorders are all inter-related diseases.

Jose Rudy Bautista v. El Burg ShipManagement Philippines, Inc., Augustea Shipmanagement Italy and/or Capt. Antonio Nombrado, G.R. No.206032, August 19, 2015, First Division, Associate Justice Estela Perlas-Bernabe, Ponente.  Attys. Rene Pilapil and Charles Dela Cruz handled for vessel interests


Firm News

Ruben Del Rosario was panelist at recently concluded 2015 Philippine Manning Convention

Managing Partner Ruben Del Rosario was a panelist at the 2015 Philippine Manning Convention which was held last 10-11 November 2015 at the Manila Hotel.  Ruben was asked to provide his insight to the remarks of speakers Commissioner Grace Tan of the NLRC, Director Tess Audea of the NCMB and Congressman Jesus Manalo of the Angkla Party List.


Pedrito Faytaren speaker at Lauritzen Maritime Conference

Managing Associate Pedrito Faytaren was a speaker at the Lauritzen Maritime Conference last 6 November 2015 which was held at Makati Diamond Residences.  He spoke on health issues on ships and updates on crew claims jurisprudence.  The conference was attended by senior officers of Lauritzen.  

The firm would like to thank Lauritzen as well as their agents Phoenix Maritime and New Century for the invitation to be part of this special event.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., December 4, 2015 (Issue 2015/23)

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

In this issue:

Seafarers Protection Act signed into law

Supreme Court declares seafarer’s dismissal illegal as reason for dismissal was not duly proven

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Seafarers Protection Act signed into law

On 26 November 2015, the President of the Republic of the Philippines signed into law Republic Act No. 10706 which is “An Act Protecting Seafarers Against Ambulance Chasing and Imposition of Excessive Fees and Providing Penalties Therefor” or simply called the Seafarers Protection Act.

The Act recognizes that seafarers, who have suffered disability or death, have fallen victims to an unfair scheme where unscrupulous individuals promise them huge monetary award in exchange for exorbitant fees.   

The Act now prohibits any person to engage in ambulance chasing or the act of soliciting, personally or through an agent, from seafarers or their heirs, the pursuit of any claim against their employers for the purpose of recovery of monetary claim or benefit including legal interest arising from accident, illness or death, in exchange for an amount or fee which shall be retained or deducted from the monetary claim or benefit granted to or awarded to the seafarer or their heirs.

When a contract or arrangement is entered into between a seafarer and/or his heirs and a party representing them on the claim where such representative would be entitled to fees, such fees shall not exceed 10% of the compensation or benefit awarded to the seafarer or his heirs.

Any person who violates Section 3 of the Act (Prohibition on Ambulance Chasing) shall be punished by a fine not less than PHP50,000.00 but not more than PHP100,000.00 or imprisonment of not less than 1 year but not more than 2 years or both fine and imprisonment.  The same penalties shall be imposed upon any person who shall be in collusion in the commission of the prohibited act..

The Act will take effect on 16 December 2015 although the Secretary of Labor and Employment, in coordination with the Maritime Industry Authority and the Philippine Overseas Employment Administration, were still tasked to promulgate the necessary rules and regulations for the effective implementation of the Act.

Author’s Note: Criminal liability is limited only to violation of “Ambulance Chasing”. There is no criminal sanction if violation is based on Section 4 or the provision on “Imposition of Excessive Fees”. However, in promoting the interest and welfare of the Filipino seafarers, the encouraging effects of the law may be summarized as follows: (a) the seafarer, as compared to the existing practice, cannot anymore be legally required to pay their lawyers of attorney’s fees more than 10% of the total amount received, either by way of amicable settlement or an amount awarded by the labor courts; and (b) a limited amount to be paid as attorney’s fees would mean additional amount of compensation to be received by the seafarers.      

Supreme Court declares seafarer’s dismissal illegal as reason for dismissal was not duly proven

Seafarer was engaged as Chief Cook.  During employment, the Master of the vessel gave a notice of dismissal to the seafarer reasoning that because of his handicap of stiff right arm, he cannot perform his job well such as serving the meals, cleaning the kitchen, messrooms and stores.  That this functions can only be done by him with the assistance of a Messman.
On the basis of the dismissal letter, the seafarer was repatriated and after some time, filed a claim for illegal dismissal with the Labor Arbiter.  

The Labor Arbiter granted the claim but this was set aside by the NLRC on appeal.  Upon petition, the Court of Appeals reinstated the award of the Labor Arbiter and declared the dismissal to be illegal.
Upon reaching the Supreme Court, the dismissal was affirmed to be illegal.

The Court explained that as a general concept, poor performance is tantamount to inefficiency and incompetence in the performance of official duties. An unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. Poor or unsatisfactory performance of an employee does not necessarily mean that he is guilty of gross and habitual neglect of duties

To ascribe gross neglect, there must be lack of or failure to exercise slight care or diligence, or the total absence of care in the performance of duties. In other words, there is gross neglect when the employee exhibits thoughtless disregard of consequences without exerting effort to avoid them. On the other hand, habitual neglect involves repeated failure to perform duties for a certain period of time, depending upon the circumstances, and not mere failure to perform duties in a single or isolated instance.

The dismissal report against the seafarer did not describe the specific acts that would establish his alleged poor performance, or his want of even slight care in the performance of his official tasks as chief cook for a certain period of time; hence, even assuming that seafarer’s performance was unsatisfactory, the company failed to show that his poor performance amounted to gross and habitual neglect of duties.

The Court likewise noted the failure of the Master to comply with the procedure in terminating the employment of a seafarer based on the POEA Contract as seafarer was not given a written notice stating the charges against him and an opportunity to defend himself.

Section 17 of the POEA Contract specifically provides that before an erring seafarer can be validly dismissed, he must be given by the Master of the vessel a written notice stating the charge or charges against him; and, the date, time and place for a formal investigation of such charge. Thereafter, an investigation or hearing, duly documented and entered in the ship’s logbook, must be conducted to give the seaman the opportunity to explain or defend himself. If found guilty, the seaman shall be given a written notice of the penalty meted out against him with the specific reasons for the penalty so imposed.   Such procedure may be dispensed with only if there is a clear and existing danger to the safety of the crew or the vessel which was not present in this case.

Author’s Note:  Please note that in the recently issued amendments to the Implementing Rules and Regulations (IRR) of the Labor Code on Termination of Employment, the term “gross neglect” is now defined as the absence of that diligence that an ordinary prudent man would use in his or her own affairs.  On the other hand, the term “habitual neglect” refers to the repeated failure to perform one’s duties over a period of time depending on the circumstances.  For said ground to be a valid cause for termination of employment, the IRR requires that there must be neglect of duty and that such neglect must be both gross and habitual in character.

INC ShipManagement, Inc., InterOrient Navigation Company Ltd., and Reynaldo Ramirez vs. Ranulfo Camporedondo, G.R. No. 199931, September 7, 2015, Second Division, Associate Justice Mariano Del Castillo, Ponente.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry [Download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., February 4, 2016  (Issue 2016/01)

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

Supreme Court denies compensability in suicide of seafarer based on Master’s Report

The Supreme Court was faced with the task of resolving the conflicting findings of the NLRC and the Court of Appeals in determining the compensability of seafarer’s death.  The NLRC denied the claim as it found that seafarer’s death was due to suicide.  On the other hand, the Court of Appeals differed and found that the fact of suicide was not duly established by evidence.

On-board the vessel, a crewmember was celebrating his birthday and there was a small gathering for this purpose.  The subject seafarer was invited but declined to join.  Thereafter, the Master ordered the conduct of a fire drill.  After the fire drill, a meeting was held where the seafarer was admonished because of poor performance.  Even prior to the end of the meeting, the seafarer left.  

After the meeting, the Master asked the crew to look for the seafarer as he was no longer in the meeting area.  The crew searched for the seafarer and one fellow crew said he saw him jump overboard.  Despite search for the crew, he was not found.  

Inside his cabin, they saw a suicide note where he was apologizing to his fellow crew for letting them down and that his remorse can only be replaced by ending his life.  The details of the incident were laid down in the Master’s Report, Statement of Facts and Investigation Report.

Unsatisfied, the heirs of the seafarer filed a claim for death benefits against the company.  They alleged that the Master’s Report and Statement of Facts cannot be given any value as the Master who signed the same did not give positive testimony regarding the suicide of the seafarer.  The Investigation Report signed by the crewmembers also cannot be given weight as they did not have any knowledge of the suicide and that the crew who saw the seafarer jump overboard did not sign the Investigation Report.

The Supreme Court, upon review of the allegations and evidence presented, held that the fact of suicide was duly proven by the Master’s Report, Statement of Facts and Investigation Report.

The Master’s Report was very detailed as to what happened prior, during and after the incident.  The Statement of Facts also showed the steps taken by the vessel in retracing its route to look for the seafarer as well as reporting the same to the local manning agents and Japan Coast Guard who also assisted in the search and rescue operation.   The statements of the Master were notarized by a notary public.

As to the Investigation Report, the company was fully able to explain the reason why the crew who saw the seafarer jumped overboard was not able to sign it.  The crew already disembarked from the vessel at the time the investigation was concluded although he reported to the local manning agent where he reiterated his statement.

More importantly, the suicide note found only bolsters the fact that the seafarer committed suicide.  In said note, he was apologetic to his fellow crew and blamed himself for the difficulties he assumed to have caused his colleagues.  There was no evidence presented that would show that the note was fabricated and on the contrary, a simple comparison of the signatures of the seafarer in the note and his contract would show their similarities.

As substantial evidence was duly established to prove the fact of suicide, the heirs of the seafarer are not entitled to death benefits under the provisions of the POEA Contract.

New Filipino Maritime Agencies, Inc., Taiyo Nippon Kisen Co., Ltd. and Angelina Rivera v. Vincent Datayan – Heir of Simon Vincent Datayan III, G.R. No. 202859, December 8, 2015, Second Division, Associate Justice Mariano Del Castillo, Ponente. (Attys. Christopher Ignacio and Denise Cabanos of DelRosarioLaw handled for vessel interests).

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry [Download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., February 16, 2016  (Issue 2016/02)

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

Substantial Evidence needed to prove compensability of illness

Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion even if other minds equally reasonable might conceivably opine otherwise.  

In two recent decisions of the Supreme Court, seafarers were granted disability benefits as they were able to prove with substantial evidence that their illnesses are work-related.

In Jay Licayan vs. Seacrest Maritime Management, Inc. Clipper Fleet Management and/or Redentor Anaya, the Court held compensable seafarer’s illness of panic disorder.  The Court reasoned that it was duly proven that aside from seafarer’s daily routine as Fitter, he would perform and install the water and oil separation fixtures during the voyage which was normally done when the vessel was on dry dock.  He would also install the steel platforms which serve as the path walk of the crew when the vessel is loaded with chemicals.  The extraordinary difficult job of the seafarer unduly put him under great pressure resulting to emotional disorder.  The seafarer likewise presented the opinion of his personal doctor which categorically stated that his illness is work-related as compared to the opinion of the company-designated doctor that the cause of the illness is unknown and genetics may be a factor.  The Court likewise held that the opinion of the doctor was not able to overcome the presumption in favor of the seafarer that the illness is work-related.

In the case of Philippine Transmarine Carriers, Inc. and Northern Marine Management vs. Joselito Cristino, the Supreme Court likewise held that substantial evidence showed that seafarer’s malignant melanoma (a type of skin cancer) is work-related.   The seafarer was also a Fitter and was able to prove that his duties would include being exposed to direct sunlight when he was doing deck work.  The Supreme Court noted that seafarer was working with the company for the past 15 years and that his exposure to sunlight while working may have caused, or at the very least, aggravated his illness.  Lastly, the Court did not give due weight to the opinion of the company-designated physician that the illness is not work-related for being unsubstantiated as compared to the seafarer’s personal doctor who treated him extensively.

Jay Licayan vs. Seacrest Maritime Management, Inc. Clipper Fleet Management and/or Redentor Anaya, G.R. No. 213679, January 13, 2016; Second Division, Associate Justice Jose Catral Mendoza, Ponente

Philippine Transmarine Carriers, Inc. and Northern Marine Management vs. Joselito Cristino, G.R. No. 188638, December 9, 2015; Second Dvision, Associate Justice Jose Catral Mendoza, Ponente

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., March 2, 2016  (Issue 2016/03)

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

In this issue:

Medical abandonment of seafarer paves way for denial of claim

Firm News
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Medical Abandonment by seafarer paves way for denial of claim

Seafarer complained of neck and lower back pain during his employment.  He also noticed numbness and weakness of his left hand.  Coinciding with his end of contract, complainant was repatriated and upon arrival in the Philippines, he was referred to the company-designated physician for examination.  Seafarer was diagnosed of cervical radiculopathy, thoracic and lumbar spondylosis, as well as carpal tunnel syndrome of the left trigger finger and third digit of his right hand.  He underwent carpal tunnel surgery and physical therapy sessions for his cervical and lumbar condition.

While the treatment was on-going, a claim for disability benefits was initiated by the seafarer with his union.   The company-designated doctor opined that had the seafarer continued with his treatment, there is a good chance that he would be declared fit to work.  

Eventually, the seafarer brought the matter to voluntary arbitration where he presented the medical opinion of his doctor stating that he is incapable of returning to sea duties because of his medical condition.  The company questioned the claim considering that the claim was premature as it was filed when the seafarer was undergoing treatment.

The voluntary arbitrators were one in their decision to award maximum disability benefits to the seafarer reasoning that a cause of action existed when the company refused to pay disability benefits.  Likewise, then company-designated doctor failed to assess the seafarer with a disability beyond 120 days.  

Upon petition before the Supreme Court, the claim was dismissed.

Claim is premature

The Court held that clearly, the complaint was premature. Seafarer has no cause of action yet at the time of its filing as the company-designated doctor has no opportunity to definitely assess his condition because he was still undergoing treatment; and the 240-day period had not lapsed.  Moreover, he has no basis for claiming permanent and total disability benefits because he has not yet consulted his doctor-of-choice.

Medical abandonment

Not only did seafarer prematurely file his complaint, he reneged on his duties to continue his treatment as necessary to improve his condition. ln his report, the company-designated doctor opined that had the seafarer continued his  treatment there is a good chance that he would be declared fit to work.  However, seafarer did not report back to his clinic.

The Court cannot blame the company for holding that seafarer abandoned his treatment as he failed to reasonably explain his failure to report to the company-designated physician for almost 2 months.  The only clear circumstance that transpired within said 2 months is that he already filed his Complaint.

Under Section 20(D) of the POEA-SEC, no compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties.  Seafarer was duty-bound to comply with his medical treatment sessions, including the recommended consultation to an orthopedic specialist in order to give the company-designated doctor the opportunity to determine his fitness to work or to assess the degree of his disability. His inability to continue his treatment for 2 months without any explanation proves that he neglected his corresponding duty to continue his medical treatment.  Consequently, seafarer's inability to regularly return for his treatment caused the regress of his condition as opined by the company-designated doctor.

Indeed, seafarer did not comply with the terms of the POEA-SEC. The failure of the company-designated doctor to issue an assessment was not of his doing but resulted from seafarer's refusal to cooperate and undergo further treatment. Such failure to abide with the procedure under the POEA-SEC results in his non-entitlement to disability benefits.

Wallem Maritime Services, Inc., Reginaldo Oben and Wallem Shipmanagement Ltd. vs. Edwinito Quillao, G.R. No. 202885, January 20, 2016; Second Division, Associate Justice Mariano Del Castillo, ponente (Attys. Florencio Aquino and Maricris Ferrer of Del Rosario & Del Rosario handled for vessel interests)

Firm News
The Firm is pleased to announce the promotion of Maricris Ferrer to Senior Associate.  Maricris or “Cindy” received her Juris Doctor Degree from the Ateneo De  Manila University School of Law and her Bachelor of Arts in Political Science from the University of the Philippines Diliman.  She has been handling crew claims disputes as well as corporate matters.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., June 3, 2016  (Issue 2016/06)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

In this issue:

Claim for disability benefits denied due to failure to comply with 3 day rule

Firm News
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Claim for disability benefits denied due to failure to comply with 3 day rule

At the forefront of this case is the 3 day rule found under the POEA Standard Employment Contract.

Seafarer was engaged as fitter.  During employment, seafarer experienced severe pain in his ears which he allegedly reported to his superiors but was not minded.  Eventually, seafarer was repatriated.  A week after, he allegedly sought medical consultation with the Seamen's Hospital, which diagnosed him with severe hearing loss. Later, another doctor diagnosed him to be "Permanent Medical Unfitness with a Disability Grade 1" due to a "profound hearing loss."
On the basis of the medical findings, seafarer filed an action against his employers claiming disability benefits, moral and exemplary damages, legal interest, and attorney's fees which was heard before the National Conciliation and Mediation Board and submitted to a Panel of Voluntary Arbitrators (PVAs).
The PVAs granted the claim for disability benefits reasoning that the employer was not able to refute the findings of seafarer’s personal doctor that seafarer is permanently unfit to work.  

The PVAs award of disability benefits was overturned by the Court of Appeals and the Supreme Court.

In affirming the Court of Appeals, the Supreme Court held that the seafarer arrived in the Philippines on 23 March 2010. On 29 March 2010, he underwent an Audiogram at the Seamen's Hospital. On 27 April 2010, seafarer’s doctor diagnosed him with "Permanent Medical Unfitness with a Disability Grade 1" based on the Audiogram.

It is a settled rule that for a seaman's disability claim to prosper, it is mandatory that within three days from repatriation, he is examined by a company-designated physician.  His failure to do so will result to the forfeiture of his right to claim for compensation and disability benefits.  The seafarer failed to comply with this requirement.  He also failed to show that he was physically incapacitated to be medically examined by a company-¬designated physician that would have justified his non-compliance with the mandatory three-day period.

The seafarer submitted an Audiogram to support his claim for disability benefits. The Audiogram, taken six days after his arrival, did not indicate that it was taken by a company-designated physician. It did not indicate that it came from Seamen's Hospital. It was not signed, and it did not contain an interpretation of the graph. It was simply a printout from the audiometer. Seaman’s doctor, who issued a medical certificate diagnosing Ricasata with severe hearing loss, was not a company-designated physician. She specializes in Family and Occupational Medicine and is not an EENT.  Her medical certificate was based only on the Audiogram. Yet, she declared the seafarer to be suffering from "Permanent Medical Unfitness with a Disability Grade 1" without giving him additional medical examinations and procedures.

In view of the above, the claim for disability benefits was denied.

Edren Ricasata vs.Cargo Safeway, Inc. and Evergreen Marine Corporation (Taiwan) Ltd., G.R. Nos. 208896-97, April 6, 2016; Second Division, Senior Associate Justice Antonio Carpio, ponente (Attys. Charles Dela Cruz and Denise Cabanos handled for vessel interests)

Firm News

Partner Denise Cabanos and Del Rosario Pandiphil in-house medical coordinator, Dr. Edgardo Del Rosario were guest speakers for the Bulk Carrier Advanced Workshop of Thome Shipmanagement PTE Ltd. last 2 June 2016.  Denise spoke on legal/commercial disputes arising from cargo claims and contaminations while Edgardo spoke on injuries/Illnesses of a crew on board the vessel.

Many thanks to  Thome Shipmanagement PTE Ltd. for the gracious invitation and congratulations for the successful staging of your seminar.
Managing Associate Pedrito Faytaren, Jr. was a guest speaker at the 22nd Crew Management & Review Seminar of Star Management Associates and Foscon Shipmanagement, Inc. conducted last 19-20 May 2016. His topic was on recent developments in crew claims jurisprudence and the Seafarers Protection Act.
Many thanks to Star Management Associates and Foscon Shipmanagement for the gracious invitation and congratulations for the successful staging of your seminar.

Employee News

The Firm welcomes  Ma. Kristine Gay M. Cengca as its newest Junior Associate.  Kristine is a 2009 Bachelor of Science in Political Science graduate from the University of the Philippines, Manila and a 2015 Juris Doctor, College of Law graduate from the University of the Philippines, Diliman.  She was previously employed by Del Rosario Pandiphil as Junior Claims Executive from 2009 to 2013 prior to taking up law and passing the recent bar examinations.

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Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

 Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

 
Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., June 22, 2016  (Issue 2016/07)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

In this issue:

Aortic regurgitation not compensable as work-relation not proven

Firm News
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Aortic regurgitation not compensable as work-relation not proven

Seaman was engaged as oiler.  Prior to deployment, he was declared fit to work in the pre-employment medical examination (PEME).  During employment, he felt heartache and loss of energy and was confined in a hospital for treatment.  Later on, he was repatriated for further treatment where he was referred to the company-designated doctor.  After examination and treatment, seaman was diagnosed with “aortic regurgitation, moderate” but declared the condition to be not work-related.

Seaman sought a second opinion and his doctor declared him to be unfit to work.  On this basis, a claim was brought by the seaman before the NLRC.  He claims that he is entitled to disability benefits as he was declared fit in the PEME and that his illness manifested during employment.  He likewise argued that he is considered permanently and totally disabled as he was unable to work for more than 120 days.

The Labor Arbiter and the NLRC both dismissed the claim of the seaman as they found that seaman failed to show work-connection of the illness.  However, the Court of Appeals awarded disability benefits as seaman’s illness was suffered during employment and that he was unfit to work for more than 120 days.

Upon reaching the Supreme Court, the claim for disability benefits was dismissed.

The illness was not proven to be work-related

The Court held that those illnesses not listed as occupational diseases may be compensated if it is shown that they have been caused or aggravated by the seafarer’s working conditions. The Court stressed that while the POEA-SEC provides for a disputable presumption of work relatedness as regards those not listed as occupational diseases; this presumption does not necessarily result in an automatic grant of disability compensation. The claimant still has the burden to present substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, that his work conditions caused or at least increased the risk of contracting the illness.

In this case, considering that seaman did not suffer from any occupational disease listed under Section 32-A of the POEA-SEC, then to be entitled to disability benefits, he has the burden to prove that his illness is work-related. Unfortunately, he failed to discharge such burden. Records reveal that seaman was diagnosed of aortic regurgitation, a heart condition whereby the aortic valve permits blood ejected from the left ventricle to leak back into the left ventricle. Although this condition manifested while seaman was aboard the vessel, such circumstance is not sufficient to entitle him to disability benefits as it is of equal importance to also show that the illness is work-related.

Seaman simply relied on the presumption that his illness is work-related. He did not adduce substantial evidence that his work conditions caused, or at the least increased the risk of contracting his illness. He did not elaborate on the nature of his work and its connection to his illness.

In a belated attempt to establish work-relatedness, seaman argued that his illness is compensable due to stress.  Such claim is unmeritorious as it still failed to prove the required linkage between the work and the illness to entitle the seaman to disability benefits.

The opinion of the company-designated doctor upheld

The Court in upholding the findings of the company-designated doctor held that Section 20(B) (3) of the POEA-SEC provides that the company-designated doctor is tasked to determine the fitness or the degree of disability of a medically repatriated seafarer.  In addition, the company-designated doctor was shown to have closely examined and treated the seafarer from his repatriation up to four months thereafter. Thus, reliance on the declaration of the company-designated doctor that seaman's condition is not work-related is justified.

The Court also noted that even seaman's physician of choice made no pronouncement whether the condition is work-related or not. In his one-page medical report, seafarer’s doctor only stated that seaman is not fit for work. He neither stated that seaman's condition is• not work-related nor did he expound on his conclusion that respondent is not fit for work.

Passing PEME not indicative that illness was suffered during employment

Lastly, the Court holds that the fact that seaman passed the PEME is of no moment in determining whether he acquired his illness during his employment. The PEME is not intended to be a thorough examination of a person's medical condition, and is not conclusive evidence that one is free from any ailment before deployment.  Hence, it does not follow that because seaman was declared fit to work prior to his deployment, then he necessarily sustained his illness while aboard the vessel.


Doehle-Philman Manning Agency, Inc., Doehle (IOM) Limited and Capt. Manolo T. Gacutan vs. Henry C. Haro, G.R. Nos. 206522, April 18, 2016; Second Division, Associate Justice Mariano Del Castillo, ponente

Firm News

Del Rosario Law Partner Charles Jay Dela Cruz was elected as Director and Corporate Secretary of the Philippines Norway Business Council (PNBC) for the term 2016-2017.

PNBC is a non-stock, non-profit organization which aims to promote closer economic and friendly relations between Philippines and Norway and provides a forum for exchange of views on business and commercial dealings in both domestic and international setting.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.
 

 Philippine Shipping Update – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., June 29, 2016  (Issue 2016/08)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

In this issue:

Seaman’s own statements used against him; findings of company-designated physician upheld

Firm News
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Seaman’s own statements used against him; findings of company-designated physician upheld

Seaman was engaged as Bosun.  According to him, his work entails a lot of heavy lifting and occasionally, he would skid and fall while at work on deck.  During employment, he experienced numbness in his hip and back.  He was given medicines which afforded temporary relief but as the days went on, the pain became intense which necessitated his confinement in a hospital.  He was then repatriated and was referred to the company-designated doctor who diagnosed him with Mild Lumbar Levoconvex Scoliosis and Spondylosis; Right S1 Nerve Root Compression" with an incidental finding of "Gall Bladder Polyposis v. Cholesterolosis.  

For more than 3 months, the seaman was treated until he was declared fit to work.  He then signed a “Certificate of Fitness for Work” which according to the seaman was a requisite for him to obtain his sick wages.  He alleged that his condition deteriorated which prompted him to file a claim for disability benefits.  He also consulted his chosen doctor who assessed him to be unfit to go back to work because of his condition.

The Labor Arbiter ruled in favor of the seaman and awarded full disability benefits giving credence to the findings of seaman’s chosen doctor and his appearance during the conferences.  The Certificate of Fitness for Work signed by the seaman was also invalidated as it was considered an invalid waiver.  

On appeal, the NLRC dismissed the claim of the seaman and upheld the findings of the company-designated doctor that seaman is already fit to work.  On the other hand, the Court of Appeals reinstated the decision of the Labor Arbiter awarding disability benefits.  When the case reached the Supreme Court, the claim was dismissed.

Seaman did not have a cause of action at the time of the filing of the complaint

The Court narrated the events prior to seaman’s filing of a complaint with the Labor Arbiter.

One week prior to filing his complaint, the seaman wrote a letter to the company expressing his intention to be rehired and stating that after being declared fit to work, he went home to his province. He told them that during his vacation he was able to engage in a lot of activities such as walking around his neighborhood four times a week, swimming two times a week, weightlifting three times a week, driving his car on Saturdays for one hour, riding his motorbike five times a week, playing basketball every Sunday, and fishing and doing some house repairs when he had the time.

Interestingly, nine days after his letter, seaman filed his complaint with the Labor Arbiter for disability benefits, presumably after he was told that he would not be rehired, although the reasons for his rejection are nowhere stated. It is not alleged that before he filed his complaint, he first sought payment of total disability benefits from the company. In fact, it was only 3 months after seaman was declared fit to work by the company-designated doctors did seaman obtain an assessment of unfitness to work from a doctor of his choice. Thus, when he filed his complaint for disability benefits, he clearly had as yet no medical evidence whatsoever to support his claim of permanent and total disability.

Seaman failed to comply with the third doctor procedure in the POEA-SEC

The Court held that even granting that the afterthought consultation with his doctor of choice could be given due consideration, under Section 20-B(3) of the POEA-SEC, the duty to secure the opinion of a third doctor belongs to the employee asking for disability benefits. Not only did seaman fail to seasonably obtain an opinion from his own doctor before filing his complaint, thereby permitting the company no opportunity to evaluate his doctor's assessment, but he also made it impossible for the parties to jointly seek the opinion of a third doctor precisely because the company had not known about the second opinion in the first place. Three months passed before seaman sought to dispute the company-designated physicians' assessment, and during this interval other things could have happened to cause or aggravate his injury. In particular, the Court noted that, after he collected his sick wage, seaman spent two months in his home province and engaged in various physical activities.

The findings of the company-designated doctor are more credible

The Court noted that there are inherent defects in the medical report issued by seaman’s doctor to conclude that it was not the result of an honest, bona fide treatment of the seaman, but rather one issued out of a short one-time visit. It noted that said doctor issued a pro-forma medical certificate, with the blanks filled in his own hand. The doctor certified that seaman's condition "did not improve despite medicine," yet nowhere did he specify what medications, therapy or treatments he had prescribed in arriving at his unfit-to-work assessment, nor when and how many times he had treated seaman. No laboratory and diagnostic tests and procedures, if any, were presented which could have enabled him to diagnose him as suffering from lumbar hernia or "Herniated Nucleus Pulposus, 'L5-S1, Right" as the cause of his permanent disability. There is no proof of hospital confinement, Iaboratory or diagnostic results, treatments and medical prescriptions shown which could have helped the company-designated physicians in re-evaluating their assessment of seaman's fitness. When seaman’s doctor said that seaman’s symptoms were aggravated due to his work which entails carrying heavy loads, he obviously relied merely on seaman’s account about what allegedly happened to him aboard ship nine months earlier.

No showing that condition is a serious spinal injury which may result to permanent disability

The Court noted that both the Labor Arbiter and the Court of Appeals found the seaman to have suffered serious spinal injuries for him to be considered as permanently and totally disabled on the basis alone of a diagnosis of "Mild Lumbar Levoconvex Scoliosis [left curvature of the spinal column in the lower back, L1 to L5] and Spondylosis; Right S1 Nerve Root Compression,". The Court held that there is nothing which would show that the condition could have been the result of strain or an accident while seaman was aboard the ship, not to mention that it was only a "mild" case.  The company-designated doctor noted that seaman was free from pain and had regained full range of trunk movement. For 95 days, seaman underwent therapy and medication, and the final test to see if his low back pain had an underlying herniated disk (slipped disc) was negative.

Apparently, then, seaman’s back pain had been duly addressed. He himself was able to attest that back home, when he was on vacation, he was able to engage in various normal physical routines.

Concerning the Labor Arbiter's observation of seaman’s alleged deteriorated physical and medical condition, and therefore his unfitness to return to work, let it suffice that the Labor Arbiter's own opinion as to the physical appearance of the seaman is of no relevance in this case, as it must be stated that he is not trained or authorized to make a determination of unfitness to work from the mere appearance of the seaman at the arbitral proceedings.

Scanmar Maritime Services, Inc., Crown Shipmanagement, Inc., Louis Dreyfus Armateurs and MT Ile De Brehat and/or Mr. Edgard Canoza vs. Emilio Conag, G.R. Nos. 212382, April 6, 2016; Third Division, Associate Justice Bienvenido Reyes, ponente (Attys. Charles Dela Cruz and Maricris Ferrer of DelRosarioLaw handled for vessel interests)  

Firm News

Partners Joseph Rebano and Denise Cabanos recently visited several Clubs and Members and insurance companies in Japan from 7 – 17 June 2016.  Over their 10 days stay in Japan, they visited Tokyo, Kobe, Osaka, Imabari, Matsuyama and Fukuoka where they conducted seminars and spoke on various issues such as Filipino crew claims, procedures in the NLRC and voluntary arbitration as well as the new law, The Seafarer’s Protection Act.  

Many thanks to all for their wonderful hospitality, attendance and participation.  

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.



 

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., August 1, 2016  (Issue 2016/10)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

In this issue:

Supreme Court rules that adenomyoma (benign tumor in the uterus) not proven to be work-related

Firm News

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Supreme Court rules that adenomyoma (benign tumor in the uterus) not proven to be work-related

Seafarer was engaged initially as an Assistant Accountant (Night Auditor) and then later on as Casino Attendant.  During her employment, she “experienced profuse and consistent bleeding, extreme dizziness and . . . difficulty in breathing”. She went to the ship’s clinic and was given medication. The next day, she experienced severe headache and again went to the ship’s clinic, and was prescribed a different medication, which worsened her headache. Thus, she stopped taking the medicine. Her bleeding intensified. She was later advised by the ship’s physician to rest. However, her condition did not improve so she went to a shore clinic. A transvaginal ultrasound conducted on the crew revealed that she had two (2) ovarian cysts. She returned to the ship and was assigned to perform light duties. On March 20, 2010, the crew was medically repatriated and was referred by the employer to the company-designated physician. The specialist diagnosed the crew with “Abnormal Uterine Bleeding Secondary to an Adenomyosis with Adenomyoma.”  Seafarer underwent endometrial dilatation and curettage as part of her treatment.  The crew was then declared fit to work within the 240-day period.

Thereafter, the crew filed a complaint for payment of disability benefits based on her collective bargaining agreement (CBA), medical expenses, moral and exemplary damages and attorney’s fees.  

The Labor Arbiter and the NLRC awarded the crew full disability benefits of US$80,000 based on the CBA.  The Court of Appeals denied the claim but awarded financial assistance in the amount of PHP50,000.

Upon reaching the Supreme Court, the denial of disability compensation was affirmed.

CBA not applicable as no accident

The CBA provides that: A Seafarer who suffers injury as a result of an accident from any cause whatsoever whilst in the employment of the Owner/Company, regardless of fault, including accidents and whose ability to work is reduced as a result thereof, shall in addition to his sick pay, be entitled to compensation according to the provisions of this Agreement.  The Court noted that the crew complained of bleeding, dizziness and difficulty in breathing.  She never alleged any accident that resulted into her illness.  As such, the CBA provision is not applicable.

Claimant must prove work-relation of the illness

Adenomyoma is not included in the list of occupational diseases under the POEA Standard Employment Contract; however, Section 20(B)(4) of the POEA Contract provides that those illnesses not listed are disputably presumed as work related.  While the law recognizes that an illness may be disputably presumed to be work-related, the seafarer or the claimant must still show a reasonable connection between the nature of work on-board the vessel and the illness contracted or aggravated.  The claimant cannot simply rely on the disputable presumption provision in the POEA Contract.

In this case, the crew was unable to present substantial evidence to show the relation between her work and the illness she contracted. The crew argues that her illness is the result of her “constantly walking upward and downward on board the vessel carrying loads” and that she “acquired her illness on board respondents’ vessel during the term of her employment contract with respondents as Casino Attendant”. However, the crew did not discuss the duties of a Casino Attendant. She also failed to show the causation between walking, carrying heavy loads, and adenomyoma. She merely asserts that since her illness developed while she was on board the vessel, it was work-related. The presentation of evidence showing the relation between her work as Casino Attendant and the illness becomes very crucial considering that when she experienced profuse bleeding, she had only been a Casino Attendant for at least a month.

Crew was declared fit to work within 240 days

The Court struck down the argument of the crew that she should be entitled to full disability benefits because her treatment lasted more than 120 days.  

The company-designated physician was justified in not issuing a medical certificate on whether the crew was fit to work after the lapse of 120 days because her treatment required more than 120 days. The crew’s illness could not be automatically considered total and permanent simply because there was no certification that she is fit to work after 120 days. The Court again reiterated that the 120 days treatment period may be extended to 240 days if further medical attention is needed and within the 240 days period, she may be declared fit or suffering from a disability.

The Court further noted that in 2010, the POEA Contract was amended and now provides that a disability grading shall no longer depend on the number of days of treatment.

Findings of the company-designated doctor upheld

Based on jurisprudence, the findings of the company-designated physician prevail in cases where the seafarer did not observe the third-doctor referral provision in the POEA Standard Employment Contract. 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.

In this case, the crew was referred by her employer to the company-designated doctor who is an obstetrician-gynecologist, while the crew’s personal physician is an orthopedic-surgeon.  It is not disputed that the crew was diagnosed with Abnormal Uterine Bleeding secondary to adenomyosis with adenomyoma. Thus, between the two physicians, the obstetrician-gynecologist is more qualified to assess the crew’s condition.  

Further, the company-designated physician was able to closely monitor the crew’s condition from the time she was repatriated until she was declared fit to work or for about 7 months.  On the other hand, the crew’s doctor merely evaluated the results of “crew’s medication, treatment and examination”.  The crew failed to show how she was examined and treated by her personal physician, and how her personal physician arrived at the conclusion that she is unfit to work as seafarer.

Thus, considering that the company-designated physician closely monitored the treatment of the crew, and also considering that the crew did not observe the third-doctor referral provision, it is proper to give greater weight to the findings of the company-designated physician with respect to fitness to work.  

Maricel Nonay vs. Bahia Shipping Services, Inc. Fred Olsen Lines and Cynthia Mendoza, G.R. Nos. 206758, February 17, 2016; Second Division, Associate Justice Marivic M.V.F. Leonen, ponente

Firm News

Partner Herbert Tria spoke at the seminar of Magsaysay-MOL Marine Inc. held last 2 July 2016.   His discussion centered on latest developments in crew claims as well as the Seafarers’ Protection Act.   
 
Managing Associate Pamela Coseip-Abarico of DelRosarioLaw was a speaker at the Island Overseas Transport Corporation Fleet Officers’ Meeting held last 14 July 2016. She discussed the latest jurisprudence on crew claims and the Seafarers' Protection Act.
 
Many thanks to Magsaysay MOL Marine, Inc and Island Overseas Transport Corporation for the invitation and congratulations on your seminar.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.



 

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., October 15, 2016  (Issue 2016/11)

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

In this issue:

Supreme Court rules that company-designated doctor in the best position to determine the condition of the seafarer; reiterates that non-compliance with third doctor rule is fatal to the cause of the seafarer

Firm News
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Supreme Court rules that company-designated physician in the best position to determine the condition of the seafarer; reiterates that non-compliance with third doctor rule is fatal to the cause of the seafarer    

Seafarer was hired as Third Mate.  During his employment, his right hand was slammed by a wooden door while he was performing his duties. As a result thereof, seafarer suffered a wrist injury.  He was referred to a shore medical facility where he was diagnosed with "fracture, closed, distal third radius and comminuted, with ulna head dislocation." Seafarer was repatriated for further medical treatment and he was placed under the management of the company-designated physician.  He underwent surgery [Open Reduction, Plating with Bone Grafting (Synthetic Bone Graft Osteopore, Right) and Application of External Fixator Right] which proved to be successful.  

After two months, seafarer underwent another surgery for the removal of the external fixator and was discharged the following day. After the second surgery, seafarer underwent physical therapy to facilitate for the complete rehabilitation of his injured hand.  After more than four months of treatment, seafarer was declared ''fit to resume former work" by the company-designated physician.

The seafarer disagreed with the company-designated doctor and sought the opinion of his own doctor who assessed him with a Grade “2” disability.  Armed with said medical report, he sought for the payment of disability benefits by filing a claim against the company.  

The Labor Arbiter denied the claim and upheld the findings of the company-designated physician.  On appeal, the NLRC granted the claim on the argument that seafarer was disabled for more than 120 days.

The Court of Appeals reinstated the decision of the Labor Arbiter and held that the findings of the company-designated doctor are credible and that the 120 day rule was misapplied by the NLRC.

When the case reached the Supreme Court, the claim for disability benefits was denied.

The company-designated doctor is in the best position to determine the condition of the seaman

It was the argument of the seafarer that the medical findings of his doctor should have been given credence over the findings of the company designated physician.  According to seafarer, his doctor was the one who opined that because of the intra-ventricular involvement of his fracture, there is a limitation in the joint motion of his right hand and he is suffering from residual pain which incapacitates him from lifting heavy objects and operating machines on the ship.

The Court did not agree because seafarer’s doctor’s findings was merely based on physical examination and on the medical records brought by the seafarer on the occasion of his consultation. No diagnostic tests or any medical procedure was conducted by seafarer’s doctor to support his disability grade finding. Said doctor examined the seafarer only once and could not possibly form a reliable opinion of seafarer's fitness to work based on a single consultation. In contrast, the company-designated physician was able to closely monitor the condition of seafarer's injury from the day after he was repatriated up to the time that he underwent surgery and rehabilitation and until his disability rating was issued. On the basis of the recession of symptoms, the progress of which the company designated physician has observed for four months, he has a reasonable basis to arrive at the conclusion that the petitioner is already fit to render work of similar nature as he was previously engaged.

Breach of the third doctor rule

The Court added another reason in denying the claim – the seafarer failed to comply with the procedure laid down under the POEA-SEC with regard to the joint appointment by the parties of a third doctor whose decision shall be final and binding on them in case the seafarer's personal doctor disagrees with the company-designated physician's fit-to-work assessment.  This referral to a third doctor has been held by the Court to be a mandatory procedure as a consequence of the provision that it is the company-designated doctor whose assessment should prevail. In other words, the company can insist on its disability rating even against the contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking for a referral to a third doctor who shall make his or her determination and whose decision is final and binding on the parties.  

Eduardo Silagan vs. Southfield Agencies, Inc. Victoriano Basco and/or Hyundai Merchant Maritime Co., Ltd. G.R. No. 202808, August 24, 2016; Third Division, Associate Justice Jose Portugal Perez, ponente  (Attys. Charles Dela Cruz and Jerome Pampolina of DelRosarioLaw handled for vessel interests)

Firm News

Del Rosario & Del Rosario Law Office Partners Charles Dela Cruz and Florencio Aquino together with Del Rosario Pandiphil Senior Claims Executive Jay Arthur Del Rosario visited several P & I Clubs, Ship Owners and Ship Managers in Greece and Cyprus from 5 September 2016 to 14 September 2016.  

Aside from several meeting with industry partners, they conducted seminars and discussions on the latest legal updates regarding crew claims and procedures in the Philippines.

We would like to extend our sincerest thanks to all our partners in Greece and Cyprus who provided us with a warm reception during the visit.  Our discussions proved invaluable and we hope to see all of you again soon.

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Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

 
Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  November 7, 2016  (Issue 2016/12)]

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

Supreme Court rules schizophrenia to be work-related; clarifies that third doctor rule applies only to questions on “fit to work” and “disability grading” and not on “work-relation”

The seafarer had been employed by the company as ordinary seaman for three contracts.  On his fourth contract, seafarer was employed as messman due to discovery of his color blindness.  

On the eighth month of his employment, seafarer was observed by his fellow crew to be acting strangely.  The Master’s Report noted that seafarer’s behavior changed and he was unable to sleep well.  He was not able to do his daily tasks and exhibited abnormality towards his gestures.  Seafarer was then referred to a shore doctor and was confined in a psychiatric clinic for a month.  Upon repatriation, he was referred by the company to their designated doctor for further evaluation and treatment.

After a series of treatments, seafarer was diagnosed with schizophrenia which was declared by the company-designated doctor to be not work-related as this relates to abnormalities in the structure and chemistry of the brain and appears to have strong genetic links.  On this basis, the company denied the claim for disability benefits.

Seafarer then filed a complaint with the NLRC arguing that his illness is work-related as it was brought about by his working conditions.  He presented the medical opinion of his personal doctor who stated that his coping abilities were eventually taxed as he was continuously exposed to the adverse situation of repeatedly being at sea for prolonged periods of time and he was not able to handle the stress of being demoted from seaman to messman as a result of the discovery of his color blindness.

The Labor Arbiter denied the claim on the ground that the illness is not work-related.  However, the NLRC held that seaman is entitled to disability benefits holding that while genetics may be a factor, it is unquestionable that the illness was triggered by work.  Such NLRC decision was sustained by the Court of Appeals.

When the case reached the Supreme Court, it was affirmed that the illness of the seaman is compensable.

Schizophrenia proven to be precipitated by work

The Court held that taken together, seafarer’s doctor’s diagnosis and seafarer's previous unremarkable stints as a seaman reasonably support the conclusion that his work environment increased his risk of developing or triggering schizophrenia. As detailed in seafarer’s doctor’s diagnosis, seafarer's demotion to messman appears to be the event that precipitated his mental disorder.  Prior to this, he was able to accomplish his tasks without any issue as an ordinary seaman during his previous contracts.  It was only after he was deployed as messman onboard his last vessel of employment that he began experiencing sleep interruptions and started having persecutory delusions, ultimately leading to the erratic behavior detailed in the Master’s Report.  Applying the standard of substantial evidence,  the Court found the explanation that seafarer’s prolonged stint at sea eventually taxed his coping abilities which rendered him incapable of handling the stress of being demoted to be reasonable and highly probable.

The findings of seafarer’s doctor over the findings of the company-designated doctor

The Court held that while there are instances when it sided with the company-designated physician, there are also cases when the opposite finding was upheld. As had been already categorically stated, courts are not bound by the assessment of the company-designated physician and the seafarer is given the freedom of choosing his own medical specialist. And in case of conflict, the determination of which diagnosis should prevail would primarily depend on the attendant facts and expertise of the physicians and the Court is not precluded from awarding disability benefits on the basis of the medical opinion of the seafarer's physician.  To create a sweeping rule that the findings of the company-designated physicians are conclusive would do great injustice to the constitutional protection afforded to laborers.

The reason behind previous rulings that favor the findings of company-designated physicians is not because they are infallible; rather, it is because of the assumption that they have closely monitored and actually treated the seafarer and are therefore in a better position to form an accurate diagnosis. In cases where the seafarer's own physician had a similar opportunity to observe and treat the seafarer, the assumption no longer holds, and the conflicting opinions stand in equipoise. In such instances, tribunals should closely scrutinize the conflicting medical findings.

Applying the above to the present case, the Court noted that while it was the company-designated physician who first treated the seafarer, seafarer’s doctor also had the opportunity to study and observe the seafarer.  The finding of the seafarer’s doctor were given more credence as it explained the development of the illness and the factors which precipitated the same as compared to the blanket statement of the company-designated doctor that the illness is not work-related.

Third doctor procedure clarified

The Court found it necessary to clarify the third doctor rule they have propounded in their previous cases in order to avoid confusion in the application of the POEA-SEC.  

Under Section 20 (B) (3) of the POEA-SEC, referral to a third physician in case of contrasting medical opinions (between the company-designated physician and the seafarer-appointed physician) is a mandatory procedure that must be expressly requested by the seafarer.  As a consequence of the provision, the company can insist on its disability rating even against a contrary opinion by another physician, unless the seafarer signifies his intent to submit the disputed assessment to a third physician.

It has now been clarified that Section 20 (B) (3) refers only to the declaration of fitness to work or the degree of disability.  It does not cover the determination of whether the disability is work-related. The Court held that there is nothing in the POEA-SEC which mandates that the opinion of the company-designated physician regarding work-relation should prevail or that the determination of such relation be submitted to a third physician.

Leonis Navigation Co., Inc. and World Marine Panama S.A. vs .Eduardo Obrero and Mercedita Obrero, G.R. No. 192754, September 7, 2016; Third Division, Associate Justice Francis Jardaleza, ponente  (Attys. Herbert Tria and Catherine Mangahas of DelRosarioLaw handled for vessel interests)

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.



 

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  November 18, 2016  (Issue 2016/13)

Del Rosario & Del Rosario is listed No. 1 shipping firm in the Philippines, The Legal 500, Asia-Pacific, 2015, p. 523

Supreme Court rules that failure to prove how injury/illness was suffered during employment is ground for denial of claim for disability benefits; seafarer must submit proof of work-relation

The seafarer was engaged as Chief Cook.  He claims that during his employment, he lost his balance and fell while doing his chores.  His chest hit a trash can but he ignored the pain.  Another incident allegedly happened when he slipped from the ladder and his hip hitting the deck.  He claimed that the incident was reported to the Master and he requested for medical check-up which was not given.

The seafarer finished his contract and before repatriation while he was in Australia, he sought medical consultation with a doctor.   He alleged that the Australian doctor found him to be asymptomatic from the pain that was caused by his accident but his blood pressure was elevated.  He was given maintenance medications.

Upon repatriation, the seafarer alleged that he requested for a medical referral from the manning agents but was not provided any since his termination of employment was due to finished contract.  

About 7 months thereafter, he filed a claim for disability benefits with the NLRC.  He also sought consult with his chosen doctor who diagnosed him with diabetes mellitus, essential hypertension, and rib fracture with a grade 7 disability.  He was also declared permanently unfit for sea service.

The company denied the claim as there was no reported incident on-board and that no request for medical assistance was ever forwarded by the seafarer.

The Labor Arbiter, NLRC and the Court of Appeals all awarded the seafarer with full disability benefits based on the findings of his chosen doctor.  They found the fact that the seafarer was diagnosed in Australia with a medical condition and was certified by his chosen doctor to be unfit substantial evidence to his entitlement to disability benefits.

On the other hand, the Supreme Court found the claim to be wanting in merit.

Work-relation must be established

The Court held that one important doctrine that should be considered in this case is the element of work relatedness between an illness or disability and the seafarer's duties -a relation that is explicitly required under the POEA-SEC.

Here, the seafarer failed to submit proof that his illness was work ¬related. In other words, the evidence on record misses essential facts on how he contracted or developed his illness, and how and why his working conditions aggravated this illness. In the absence of substantial evidence, one cannot just presume that seafarer's job caused his injury or aggravated any pre¬existing condition he might have had.

Substantial evidence to prove accident was not presented

While the seafarer alleged that he met two (2) accidents on board the vessel, these allegations remain unsubstantiated by sufficient evidence. He failed to show that these incidents happened because he did not present any kind of evidence to prove that the accidents occurred at all. There was no record of any medical complaint lodged by the seafarer during his employment on board the vessel. He even claimed that his fellow crewmembers noticed him limping, yet the records do not show any testimony, affidavit, or document that they, indeed, had witnessed such fact.

The only documents on record about the alleged accident were post-medical reports of the seafarer’s rib fracture and the foreign doctor’s initial report when the seafarer came to him for a medical checkup in Australia. These documents only prove the fact that the seafarer told the foreign doctor that his ribs have been hurting for two (2) weeks before he visited him, and that he has an existing rib fracture when he underwent medical examinations in the Philippines. These two facts, taken together are not enough to prove that seafarer met an accident on board the vessel.

Heart ailment not proven to be caused or aggravated by work

As for seafarer’s heart condition, no evidence was presented to show that the condition worsened during his employment. Again, what he presented were post-medical reports about the tests he underwent, the heart medications he was prescribed, and diagnosis of diabetes and hypertension. These reports, however, were issued long after the seafarer had disembarked the vessel. Although he alleged that it was the working conditions he had to undergo ¬i.e., stressful work on board the ship, harsh sea weather conditions, and constant exposure to harmful chemicals and varying changes in temperature -that aggravated his heart condition, seafarer failed to adduce any kind of evidence proving that he was indeed subject to these working conditions.

He also failed to satisfy by substantial evidence the condition laid down in the contract that if the heart disease was known to have been present during employment, there must be proof that an acute exacerbation was clearly precipitated by the unusual strain brought about by the nature of his work

Seafarer finished his contract

The labor tribunals and the Court of Appeals failed to consider the fact that seafarer was not repatriated for medical reasons.  The Court had frequently recognized the fact of a "finished contract" as the reason for a seafarer's repatriation.  In fact, this circumstance had been used as an indication that the injury or Illness is not work-related.

Philippine Transmarine Carriers, Inc. Stealth Maritime Corporation and Carlos Salinas vs. Casiano Saladas, Jr., G.R. No. 208089, September 28, 2016; Second Division, Associate Justice Arturo Brion, ponente (Atty. Charles Dela Cruz of Del Rosario & Del Rosario handled for vessels interests)

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Del Rosario & Del Rosario is listed No. 1 shipping firm in the Philippines, The Legal 500, Asia-Pacific, 2015, p. 523

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

---------------------------

Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., December 20, 2016 (Issue 2016/14)

Holiday Notice:  Our offices will be closed from 24 December 2016 to 26 December 2016 and 30 December 2016 to 2 January 2017. Our offices will be open on Tuesday, 26 December to Thursday, 29 December 2016.  Offices will resume on Tuesday, 3 January 2017,  Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 830 8384.

In this issue:

Season’s Greetings

Firm News

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Season’s Greetings
To our dear clients and friends,

We extend our best wishes and greetings this Christmas season.  

Your support has allowed us to weather the stormy seas of 2016. We sincerely thank you for your continuing trust and confidence.

2017 will mark our 40th year of service to the maritime industry.  We hope to continue our service in the next 40 years and beyond.

Del Rosario continues its assistance to the Sacred Heart Chapel at West Crame, a chapel that serves our men in uniform; the Church of the Poor Apostolate of the St. James the Great Parish, an organization that helps the 100 poorest parishes in the Philippines and the Tuloy Foundation for Street Children, which provides a home and education to some 700 orphaned and abandoned children..

This year our Christmas party took a different path in that the employees were divided into four teams and they did charitable work in four charitable institutions.  We do hope this activity awakened the spirit of service to our less fortunate brothers..  

We wish all of you and your family a joyous Christmas and may the coming year 2017 bless us all with good health, happiness and prosperity.

As always, may we ask that you say a short prayer for the countless Filipino seafarers who are unable to spend their Christmas season with their families.  If you see them this Christmas season, greet them “Maligayang Pasko” from all of us here in the Philippines.

From all of us at Del Rosario,

MALIGAYANG PASKO AT MANIGONG BAGONG TAON

Ruben Del Rosario / Arturo Del Rosario

Charles Jay Dela Cruz / Joseph Rebano / Herbert Tria / Denise Cabanos / Florencio Aquino / Catherine Mangahas

Veronica Del Rosario-Aquinaldo / Josie Dino / Jay Arthur Del Rosario / Deogracias Garcia / Rhodylyn de Torres

Firm News

Corporate Social Responsibility

In the spirit of the coming holiday season, the staffs of Del Rosario and Del Rosario Law Offices and Del Rosario Pandiphil, Inc. conducted modest CSR projects during the months of November and December.  

Groups were formed and conducted gift giving and Christmas parties to select pupils of Fr. Luigi Carboloto School in Silang Cavite, cancer-stricken children of Child Haus Manila, a trip to a theme park for a group of children of a depressed area in Manduluyong City, and a party for the patients of the Department of Health –Treatment and Rehabilitation Centre in Cam Bagong Diwa, Taguig City.

This is our little way of reaching out to the underprivileged and needy and letting them know that they are not forgotten this Christmas season.    

Seminars

Del Rosario Partner Charles Dela Cruz was a speaker at the Fleet Officers Conference of INC Navigation Company, Phils. / Interorient Shipmanagement which was held at the University of Cebu, Cebu City last 15 December 2016.  His topic was on MLC amendments on financial security and the Seafarer’s Protection Act.

Del Rosario Partners Joseph Rebano and Florencio Aquino spoke at the first ever crew conference of Toda Shipping Co., Ltd and One Shipping Corporation last 15 December 2016 at Pasay City.  Joseph spoke on P&I matters and collection of evidence while Florencio’s topic was on crew claim matters and the Seafarer’s Protection Act.

Joseph Rebano attended the TT Club Network Partner Conference held in London last 16-17 November 2016.  Del Rosario Pandiphil, Inc. is a Network Partner of TT Club since 2014.

Managing Associate Pedrito Faytaren, Jr. was a speaker at the annual crew conference of Unisea Philippines, Inc. last 9 December 2015.   He spoke on health issues on-board ships.

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

 Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., January 5, 2017 (Issue 2017/01)

In this issue:

Claim for disability benefits denied as seafarer who filed claim several months after he was declared fit-to-work  
Firm News - Promotions

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Claim for disability benefits denied as seafarer filed claim several months after he was declared fit-to-work  

The seafarer was engaged as Bosun.  During his employment, he felt severe pain in his stomach causing him to feel weak.  While emptying his bowels, he noticed that there was fresh blood in his stool.  As this persisted, he reported the matter to his superior and was referred to a local shore doctor for examination.  He was diagnosed with hemorrhage of the upper digestive tract and hypertension.  He was then repatriated for further medical treatment with the company-designated doctor.  Seafarer’s treatment lasted for fifty five (55) days until he was declared fit by the doctor.  About seventeen (17) months thereafter, the seafarer filed a claim for disability benefits because of his condition.  He later obtained a medical certificate from his personal doctor stating that he was now totally and permanently disabled because of a work-related condition.

On this basis, the Labor Arbiter awarded the seafarer full disability benefits.  On appeal, both the NLRC and the Court of Appeals dismissed the claim for disability benefits.

With the Supreme Court, the claim was again dismissed.

120 days rule not a magic wand

Seafarer argued that he should be entitled to full disability benefits because he was incapacitated for more than 120 days because of his illness.  The Court struck down this argument and held that inability of a seafarer to resume work for more than 120 days is not a magic wand that automatically warrants the grant of total and permanent disability benefits in his favor.  It cannot be used as a cure-all formula for all maritime compensation cases.  Its application must depend on the circumstances of the case, including compliance with the parties’ contractual duties and obligations as laid down in the employment contract.

Moreover, the Court held that the 2010 amendment to the POEA Contract finally clarifies that for work-related illnesses acquired by seafarers from the time the 2010 amendment of the contract took effect, the declaration of disability should no longer be based on the number of days the seafarer was treated or entitled to sickness allowance, but rather on the disability grading he received from the company-designated doctor, or in the event of a contradictory opinion from seafarer’s chosen doctor, a third doctor mutually appointed by the parties.

Reliance on the findings of the company-designated doctor

The Court noted that the seafarer was under the medical care and supervision of the company-designated doctor from the time of repatriation until he was declared fit to work – a period that spanned for 55 days.  The finding was based on thorough medical examination and supervision which was backed by laboratory examinations.  

On the other hand, the seafarer’s chosen doctor issued a medical opinion declaring seafarer to be permanently and totally unfit to work only after a single consultation without any laboratory examination conducted to validate said opinion.  There were no supporting progress reports to show actual unfitness for work.  As such, it was only proper to disregard the findings of the seafarer’s chosen doctor.

Claim declared to be premature and a mere afterthought

The Court noted that seafarer sought consultation with his personal doctor four (4) days after he filed his claim for disability benefits with the NLRC.  On this basis, the Court held that the claim was premature and at the time it was filed with the NLRC, seafarer had no cause of action.

The Court explained that at the time the seafarer filed his claim for disability benefits, he had no sufficient basis to support the same considering that it was only after that he obtained the opinion from his personal doctor.  Thus, the claim was not only premature but also lacks cause of action.

The Court also noted that the act of the seafarer in filing a claim for disability benefits and obtaining a second medical opinion 17 months after he was declared fit to work was a mere afterthought on his part in order to receive higher compensation.

Third doctor procedure not followedThe Court held that even if they are to give value to the afterthought consultation of the seafarer with his chosen doctor, they will still uphold the findings of the company-designated physician for failure of the seafarer to initiate the conflict resolution procedure in the contract.  It should be noted that the seafarer did not properly contest the findings of the company-designated doctor by timely obtaining the opinion of his chosen doctor.  Instead, he filed a claim long after he was declared fit to work and obtained a second medical opinion only after the filing of the complaint.

Genaro Calimlim vs. Wallem Maritime Services, Inc., Wallem GMBH & Co. KG and Mr. Reginaldo Oben, G.R. No. 220629, November 23, 2016; Second Division, Associate Justice Jose Catral Mendoza, ponente (Attys. Florencio Aquino and Maricris Ferrer of DelRosarioLaw handled for vessel interests.)

Firm News - Promotions

Del Rosario & Del Rosario Law Offices are pleased to announce the appointment of Pamela Portia Coseip-Abarico as a Partner of the firm.  

Pam is a shipping litigation lawyer and has wide experience in maritime labor employment issues.  She has extensively practiced in the NLRC and the NCMB.  She has also handled complex transport litigation issues.  She is a graduate of Political Science from the University of the Philippines (Cum Laude) and the Ateneo de Manila University School of Law.


The firm also announces the appointment of Ma. Gina Guinto as Managing Associate.  

Gina has handled a number of high profile maritime casualties and has specialized in maritime employment issues practicing in the NCMB, NLRC and the POEA.  She is a Business Management graduate from the University of the Philippines (Cum Laude) and a graduate of law at the Ateneo de Manila University School of Law.

Finally, the firm announces the appointments of Lovereal Ocampo-Carullo, Jamella Joya and David Valencia as Senior Associates.

Lovereal is a Bachelor of Science in Development Communication graduate from the University of the Philippines Los Banos.  She took up her Bachelor of Laws at the San Beda College, Mendiola.

Jamella is a Political Science graduate of De La Salle University Manila.  She took up her Bachelor of Laws at the San Beda College, Mendiola.

David is a Legal Management graduate of San Beda College, Mendiola and also finished his Bachelor of Laws in the same college.

Congratulations!!!

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., February 9, 2017 (Issue 2017/02)

In this issue:

Supreme Court denies death benefits as seafarer was diagnosed with chronic renal failure just seven days into employment

Firm News - Promotions

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Supreme Court denies death benefits as seafarer was diagnosed with chronic renal failure just seven days into employment

Seafarer was engaged as Bosun after being declared fit to work in his pre-employment medical examination (PEME).  He embarked on 7 May 2009.  However, on 14 May 2009, seafarer developed weakness of the lower extremities and was vomiting.  He was confined for more than a week in a shore hospital where he was diagnosed with end stage renal failure.  On 23 May 2009, he was repatriated for further treatment under the company-designated physician who classified his illness as not work-related.  On 20 September 2009, the seafarer died.

On this basis, the heirs of the seafarer filed a claim for death benefits with the NLRC arguing that the seafarer’s illness is work-related considering that one of its causes is high blood pressure which on the other hand, was triggered by the nature of the seafarer’s work.  

The company denied the claim as the illness is not work-related and that it could not have been suffered during the one week employment of the seafarer.

The Labor Arbiter found for the heirs and awarded death benefits reasoning that the previous employments of the seafarer with the same company caused or aggravated to the escalation of the illness.

The NLRC and the Court of Appeals both denied the claim as there was failure on the part of the heirs to prove work-relation of the illness.

The Supreme Court finally declared that the heirs are not entitled to death benefits.

Heirs cannot just invoke presumption of work-relation

The Court explained that a work-related illness is defined under the POEA Standard Employment Contract as any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of this contract with the conditions set therein satisfied, to wit: (1) The seafarer's work must involve the risks described herein; (2) The disease was contracted as a result of the seafarer's exposure to the described risks; (3) The disease was contracted within a period of exposure and under such other factors necessary to contract it; and (4) There was no notorious negligence on the part of the seafarer. It is also provided under Section 20B (4) of the same contract that illnesses not listed in Section 32-A are disputably presumed work-related. However, Section 20 should be read together with the conditions specified by Section 32-A for an illness to be compensable.

Accordingly, the heirs cannot just contend that while seafarer's chronic renal failure is not listed as an occupational disease, it is disputably presumed work-related, and it is for the company to overcome such presumption. The heirs still have to prove their claim for death compensation with substantial evidence or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.

Heirs should have presented substantial evidence to prove work-relation of the illness

In their arguments, the Court noted that the heirs merely stated general statements that seafarer’s illness is work-related without any supporting document or medical record.  The heirs failed to show the nature of the seafarer’s work or the working conditions which could have caused or aggravated his illness.  The claim that seafarer’s work was characterized by stress, heavy workload and overfatigue were mere self-serving allegations which are not established by any evidence on record.  In fact, while the heirs argue that high blood pressure is one of the causes of kidney failure, they failed to present any evidence which would show that the seafarer was suffering from high blood pressure during his seven days employment with the company.

The Court further noted that the seafarer was only on-board for seven days when he was diagnosed with chronic renal failure.  Said illness is a progressive deterioration of the kidney function which happens over a period of time and therefore, cannot be absolutely declared that he developed such illness during that short period in the employ of the company.

Seafarer’s employment governed by the contract he signs every time he is rehired

It was argued by the heirs that while the seafarer’s last employment with the company was only for seven days, it should be considered that he was also previously employed by the company for eight months and that there is a big possibility that he contracted the illness during that time.  However, this argument was shot down by the Court.

The Court held that the seafarer’s employment is governed by the contract he signs every time he is rehired and his employment is terminated when his contract expires.  As such, his contract with the company was considered automatically terminated after the expiration of each overseas employment contract.  

Also, if the seafarer was suffering from chronic renal failure when he began his last employment with the company, then said illness which was suffered during the previous contract is considered as pre-existing during the subsequent contract.  Hence, seafarer’s death arising from a pre-existing illness is not compensable as he did not acquire it during the term of his last employment contract with the respondents.  

Alma Covita, for her behalf and in behalf of her two minor children, Jerry and Ron, both surnamed Covita vs. SSM Maritime Services, Inc. and/or Maritime Fleet Services PTE Ltd. and/or Gladiola Jalotjot, G.R. No. 206600, December 7, 2016; Third Division, Associate Justice Diosdado Peralta, ponente

Firm News - Promotions

We are pleased to announce the promotions of Ruth Manalo, Razelle España and Shirley Perez from Junior Claims Executives to Claims Executives of Del Rosario Pandiphil, Inc.

Ruth is a Bachelor of Science in Nursing graduate of Concordia College, Manila and is a registered nurse since 2009.

Razelle is a Political Science graduate (cum laude) of the Polytechnic University of the Philippines, Manila and is currently completing her post graduate degree in Risk and Insurance Management at the De La Salle University, Manila.

Shirley is a Math Major graduate of Polytechnic University of the Philippines, Cavite.

The firm is also pleased to announce the promotions of Carrie Hernandez  and Krisha Rasing from Assistant Claims Executives to Junior Claims Executives.

Carrie is a graduate of the Polytechnic University of the Philippines, Manila with a degree of Bachelor in Office Administration.

Krisha is a graduate of Cavite State University with a degree of Bachelor of Science Major in Tourism & Resort Management.

All those promoted have been with DelRosario Pandiphil Inc. for a number of years.

Our congratulations to all!!!      

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“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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Social Networking Sites

  Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw  

This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email ruben.delrosario@delrosario-pandiphil.com .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.