Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 15 December 2017 (Issue 2017/22)
Holiday Notice: Our offices will be closed on 25-26 December 2017 and 1-2 January 2018. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Season’s Greetings
To our dear clients and friends,
We extend our best wishes and greetings this Christmas season.
We celebrated our 40th year of service in the year 2017. We thank all of you for your continued support and look forward to the next 40 years with hope and optimism knowing our clients and friends will always be on our side.
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 hundreds of orphaned and abandoned children.
We wish all of you and your family the best of the season and may the coming year 2018 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 any Filipino seafarer 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 / MERRY CHRISTMAS AND A HAPPY NEW YEAR
Ruben Del Rosario / Arturo Del Rosario
Charles Jay Dela Cruz / Joseph Rebano / Herbert Tria
Denise Cabanos / Florencio Aquino / Catherine Mangahas-Soliven / Pamela Coseip-Abarico / Saben Loyola
Veronica Del Rosario-Aquinaldo / Josie Dino / Jay Arthur Del Rosario / Deogracias Garcia / Rhodylyn de Torres
Supreme Court explains that presumption of work-relation of an illness under the POEA Contract does not extend to its compensability
A Fitter filed a claim for disability benefits based on his diagnosed hemangioblastoma or brain tumor. He claims to have been hit on the head by a metal ceiling and later on that he was exposed to certain harmful chemicals. The seafarer argued that his illness is presumed to be work-related under the POEA Contract for which he should be entitled to disability compensation. On the other hand, the employer denied the claim considering that the medical condition is not a listed occupational disease under the POEA Contract and that the company-designated physician has declared the same as not work-related.
Uniformly, the Labor Arbiter, the NLRC and the Court of Appeals all denied the claim for disability benefits on the ground that the condition was declared to be not work-related.
The Supreme Court likewise denied the claim for benefits but took the opportunity to again clarify the disputable presumption clause in the POEA Contract.
Under the POEA Contract, any sickness resulting to disability or death as a result of an occupational disease listed in the contract with the conditions set therein satisfied is deemed to be a work related illness. On the other hand, the contract also states that those illnesses not listed are disputably presumed as work related. The legal presumption of work-relatedness was borne out from the fact that the said list cannot account for all known and unknown illnesses/diseases that may be associated with, caused or aggravated by working conditions, and that the presumption is made in the law to signify that the non-inclusion in the list of occupational diseases does not translate to an absolute exclusion from disability benefits.
Given the legal presumption in favor of the seafarer, he may rely on and invoke such legal presumption to establish a fact in issue. If no contrary proof is offered, such fact, based on the presumption, will prevail.
Nonetheless, the presumption provided in the POEA Contract is only limited to the "work-relatedness" of an illness. It does not cover and extend to compensability. In this sense, there exists a fine line between the work-relatedness of an illness and the matter of compensability. The former concept merely relates to the assumption that the seafarer's illness, although not listed as an occupational disease, may have been contracted during and in connection with one's work, whereas compensability pertains to the entitlement to receive compensation and benefits upon a showing that his work conditions caused or at least increased the risk of contracting the disease. This can be gathered from the provisions of the POEA Contract which already qualifies the listed disease as an "occupational disease" (in other words, a "work-related disease"), but nevertheless, mentions certain conditions for said disease to be compensable.
As differentiated from the matter of work-relatedness, no legal presumption of compensability is accorded in favor of the seafarer. As such, he bears the burden of proving that conditions for compensability of a medical condition are met.
In other words, while the POEA Contract refers to conditions of compensability for listed occupational diseases, it should be pointed out that the conditions stated therein should also apply to non-listed illnesses given that: (a) the disputable presumption of work-relation in the POEA Contract is limited only to "work-relatedness"; and (b) for its compensability, a reasonable connection between the nature of work on board the vessel and the illness contracted or aggravated must be shown.
The Supreme Court had acknowledged that their past decisions would often confuse and/or mischaracterize the “presumption of work-relation” to “presumption of compensability” of a medical condition.
To address this apparent confusion, the Court clarified that there lies a technical demarcation between work-relatedness and compensability relative to how these concepts operate in the realm of disability compensation. As the Court discussed, work-relatedness of an illness is presumed; hence, the seafarer does not bear the initial burden of proving the same. Rather, it is the employer who bears the burden of disputing this presumption. If the employer successfully proves that the illness suffered by the seafarer was contracted outside of his work (meaning, the illness is pre-existing), or that although the illness is pre-existing, none of the conditions of his work affected the risk of contracting or aggravating such illness, then there is no need to go into the matter of whether or not said illness is compensable. As the name itself implies, work-relatedness means that the seafarer's illness has a possible connection to one's work, and thus, allows the seafarer to claim disability benefits therefor, albeit the same is not listed as an occupational disease.
The established work-relatedness of an illness does not, however, mean that the resulting disability is automatically compensable. As the Court also discussed, the seafarer, while not needing to prove the work-relatedness of his illness, bears the burden of proving compliance with the conditions of compensability under the POEA Contract. Failure to do so will result in the dismissal of his claim.
The Court pointed out that the seafarer would, in all instance, have to prove compliance with the conditions for compensability, whether or not the work-relatedness of his illness is disputed by the employer:
On the one hand, when an employer attempts to discharge the burden of disputing the presumption of work-relatedness (i.e., by either claiming that the illness is pre-existing or, even if pre-existing, that the risk of contracting or aggravating the same has nothing do with his work), the burden of evidence now shifts to the seafarer to prove otherwise (i.e., that the illness was not pre-existing, or even if pre-existing, that his work affected the risk of contracting or aggravating the illness). In so doing, the seafarer effectively discharges his own burden of proving compliance with the conditions of compensability under the POEA Contract, i.e., that (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; and (3) the disease was contracted within a period of exposure and under such other factors necessary to contract it. Thus, when the presumption of work-relatedness is contested by the employer, the factors which the seafarer needs to prove to rebut the employer's argument would necessarily overlap with some of the conditions which the seafarer needs to prove to establish the compensability of his illness and the resulting disability. In this regard, the seafarer, therefore, addresses the refutation of the employer against the work relatedness of his illness and, at the same time, discharges his burden of proving compliance with certain conditions of compensability.
On the other hand, when an employer does not attempt to discharge the burden of disputing the presumption of work-relatedness, the seafarer must still discharge his own burden of proving compliance with the conditions of compensability, which does not only include the three (3) conditions above-mentioned, but also, the distinct fourth condition, i.e., that there was no notorious negligence on the part of the seafarer. Thereafter, the burden of evidence shifts to the employer to now disprove the veracity of the information presented by the seafarer. The employer may also raise any other affirmative defense which may preclude compensation, such as concealment of a known pre-existing illness or failure to comply with the third-doctor referral provision.
Subsequently, if the work-relatedness of the seafarer's illness is not successfully disputed by the employer, and the seafarer is then able to establish compliance with the conditions of compensability, the matter now shifts to a determination of the nature and, in tum, the amount of disability benefits to be paid to the seafarer.
Benedict Romana vs. Magsaysay Maritime Corporation and/or Princess Cruise Line, Ltd. et al., G.R. No. 192442 August 9, 2017, First Division, Associate Justice Estela Perlas-Bernabe, ponente (Attys.Herbert Tria and Pamela Coseip-Abarico of Del Rosario & Del Rosario handled for vessels interests)
Firm News
Del Rosario Law Partner Charles Jay Dela Cruz was elected as Member of the Board of Trustees and Corporate Secretary of the Philippines Norway Business Council (PNBC) for the term 2017-2018.
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.
Del Rosario Law also acts as legal advisor to PNBC.
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court explains that presumption of work-relation of an illness under the POEA Contract does not extend to its compensability
↧
Supreme Court denies claim based merely on bare assertions and presumptions
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 16 January 2018 (Issue 2018/01)
Supreme Court denies claim based merely on bare assertions and presumptions
After four months on-board the vessel, the seafarer who was hired as an Ordinary Seaman complained of severe pain in his knee prompting him to seek medical consult. Thereafter, he was repatriated back to the Philippines and upon arrival was referred to the company-designated physician for further examination and treatment. After several tests, the company-designated physician issued a final diagnosis of “Giant cell tumor, proximal tibia, left knee”. The company-designated doctor likewise issued an opinion that the condition is not work-related.
The seafarer filed a complaint for disability benefits with the Labor Arbiter being armed with a second medical opinion from his personal doctor stating that he is already permanently disabled and unfit to work as a seaman because of his condition. The seafarer argued that his working conditions on-board the vessel were stressful and strenuous with long hours of work. He also argued that he was exposed to pollutants, various chemicals and toxic materials and hot and humid conditions on his work station on a constant basis while being exposed to the perils of the sea and strain of being away from his family. Lastly, he also argued that the food being provided on-board the vessel were mostly meat, high in fat and cholesterol and low in fiber. On these arguments, the seafarer prays for compensability of his condition as it was work-related.
The company denied the claim on the basis that medical expert opinion of the company-designated doctor has determined that the condition is not work-related.
The different tribunals had differing views on the matter as the Labor Arbiter awarded full disability benefits, while the NLRC dismissed the claim. On the other hand, the Court of Appeals reinstated the award of the Labor Arbiter finding for the compensability of the illness. When the case reached the Supreme Court the decision of the NLRC dismissing the claim was upheld.
The Court noted that the POEA Contract creates a disputable presumption of work-relation of the illness if the same is not listed as an occupational disease. However, such presumption may be overcome by sufficient evidence to the contrary. In this case, the expert medical opinion of the company-designated doctor was presented to prove non work-relation of the illness. The Court noted that the company-designated doctor was the one who examined and performed tests and examinations on the seafarer for a substantial period of time and as such, it is his findings and evaluations which should form the basis of the seafarer’s disability claims. On the other hand, the medical opinion of seafarer’s personal doctor, while merely echoing the findings of the company-designated doctor, failed to mention the relation of the illness to the work of the seafarer.
Moreover, it was only in the arguments and submissions of the seafarer where it was stated that his illness is work-related. He enumerated the harsh conditions that a seafarer undoubtedly experiences during employment. However, he did not explain how those conditions caused or aggravated his illness. The Court pointed out that it is as if the seafarer merely pointed out the difficult conditions experienced by any seafarer and left it to them to infer any connection that the conditions may have on the diagnosed illness.
The assertions made by the seafarer in his submissions are neither backed by the expert testimony/affidavit of any competent physician nor are they supported by any evidence or testimony other than mere self-serving allegations of the seafarer which do not deserve consideration. As such, the claim was denied as awards of compensation cannot rest entirely on bare assertions and presumptions but on substantial evidence.
OSG Ship Management Manila, Inc. (UK) Ltd. Et al. vs. Aris Wendel Monje, G.R. No. 214059, October 11, 2017, Second Division, Associate Justice Andres Reyes, Jr., ponente (Attys. Joseph Rebano and Saben Loyola of Del Rosario & Del Rosario handled for vessel interests)
Firm News
Del Rosario Partner Denise Cabanos was elected as Executive Vice President for 2017-2018 and President (-elect) for 2018-2019 of the Maritime Law Association of the Philippines (MARLAW). He is also a member of the Board of Trustees.
MARLAW is an organization of lawyers and other professionals engaged in the maritime practice in the Philippines. It is affiliated with the Comite Maritime Internationale (CMI) based in Antwerp, Belgium. Denise becomes the fifth DelRosarioLaw Partner at the helm of MARLAW.
Our congratulations to Denise!
Del Rosario Partner Florencio Aquino and Managing Associate Pedrito Faytaren, Jr. conducted an in-house seminar for the crewing managers/officers of OSM Manila last 14 December 2017. The topics dealt with legal updates on claims of seafarers and the role of the frontliners in avoiding claims.
Many thanks to OSM Manila for the kind invitation and the fruitful discussions!
Del Rosario Managing Associate Gina Guinto was a speaker at INC Navigation Co., Inc.’s Annual Fleet Officers’ Meeting which was held last 13 December 2017 at the University of Cebu, Cebu City. She spoke on the role of correspondents and claims handling.
Many thanks to INC Navigation Co., Inc. for the kind invitation and looking forward again to next year’s annual meeting.
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
↧
Supreme Court rules that failure to comply with doctor recommended procedure is medical abandonment
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 26 January 2018 (Issue 2018/02)
Supreme Court rules that failure to comply with doctor recommended procedure is medical abandonment
During employment, the seafarer slipped and fell on his back. He was referred to a shore doctor who initially diagnosed him with acute lumbago and recommended repatriation for further examination and treatment.
Upon further examination of the company-designated physician the seafarer was diagnosed with lumbosacral muscular spasm with mild spondylosis L3-L4. In the interim, the seafarer was assessed with a grade “10” disability and was scheduled to undergo a bone scan. Instead of appearing at the scheduled date of bone scan examination, the seafarer consulted his own doctor who determined him to be unfit to work as a seaman in any capacity. Nevertheless, in the medical report of seafarer’s chosen doctor, it was also recommended that he undergo a bone scan and EMG-NCV to determine the exact problem of his lumbar spine which is consistent with the recommendation of the company-designated physician.
Armed with the assessment from his chosen doctor, the seafarer filed a complaint for full disability benefits with the Labor Arbiter.
The Labor Arbiter, on his own, determined that seafarer is suffering from a grade “6” disability in accordance with the POEA Schedule and based the award of benefits on said finding. On the other hand, the NLRC awarded the maximum disability benefits on the reasoning that seafarer is already considered permanently and totally disabled as he can no longer resume his former work. The ruling of the NLRC was affirmed by the Court of Appeals.
When the case reached the Supreme Court, the award of the Labor Arbiter was reinstated.
The Court noted that the seafarer was under medical treatment with the company-designated physician for 126 days. Thereafter, the seafarer, while diagnosed with an interim disability assessment of grade “10”, was also advised to further undergo bone scan. However, instead of returning for the recommended diagnosis and treatment, the seafarer opted to secure the opinion of his chosen physician who, although arriving at a finding of permanent total disability, nonetheless required seafarer to subject himself to further bone scan and EMG-NCV to determine the exact problem on his lumbar spine. Instead of heeding the recommendations of his own doctor, the seafarer went on to file a complaint for disability benefits. In point of law, seafarer's filing of the case was premature.
The doctors were one in recommending that seafarer undergo at least a bone scan to determine his current condition while undergoing treatment, thus indicating that seafarer's condition needed further attention. In this regard, it was correct to argue that seafarer abandoned his treatment, as under the law and the POEA contract of the parties, the company physician is given up to 240 days to treat him. On the other hand, the fact that seafarer’s chosen doctor required the conduct of further tests on the seafarer is an admission that his diagnosis of permanent total disability is incomplete and inconclusive, and thus unreliable. It can only corroborate the company-designated physician's finding that further tests and treatment are required.
Nevertheless, the Court held that seafarer might have treated the company-designated physician's grade “10” temporary diagnosis as the final assessment of his condition, which prompted him to secure the opinion of his own doctor and thereafter file the case prematurely. For this he cannot be completely blamed as he might have proceeded under the impression that he was being shortchanged. Given his position in the employment relation, his distrust for the company is not completely unwarranted. As such, seafarer is entitled only to compensation equivalent to or commensurate with his injury as determined by the Labor Arbiter.
C.F. Sharp Crew Management, Inc., its President, and Gulf Energy Maritime vs. Noel Orbeta, G.R. No. 211111, September 25, 2017, First Division, Associate Justice Mariano Del Castillo, ponente
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Non-disclosure of medical procedure is not misrepresentation when medical condition is known to the employer
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 9 February 2018 (Issue 2018/03)
Holiday Notice: In view of the Chinese New Year national holiday in the Philippines, our offices will be closed on Friday 16 February 2018. We re-open offices on Monday 19 February 2018.
Emails will be closely monitored but for urgent matters, please call our 24/7 mobile 63 917 830 8384
Non-disclosure of medical procedure is not misrepresentation when medical condition is known to the employer
Seafarer was engaged by the company for several contracts starting in 1996 and which spanned eighteen years. In 2001, the seafarer was medically repatriated due to Coronary Artery Disease/Hypertensive Cardio-Vascular Disease (CAD/HCVD). He was referred to the company-designated physician and was eventually declared fit to work. Seafarer was again rehired for several contacts without event.
On his last re-engagement in 2014, the seafarer was declared fit to work during his pre-employment medical examination (PEME) and eventually boarded the vessel. During employment, the seafarer complained of heavy chest pains, shortness of breath, numbness of the left portion of his face and hypertensive reaction. He was seen at a shore hospital where he was diagnosed with “unstable angina" and subsequently, underwent Percutaneous Coronary Intervention to severe distal Right Coronary Artery. In due course, the seafarer was repatriated and referred to the company-designated doctor for further examination and treatment of his CAD/HCVD. During the course of treatment, it was determined that the seafarer had previously undergone stenting procedure sometime in 2009 and there are stents found on the arteries in the heart or in the coronary arteries. Acting on this information, the company ceased to provide medical benefits to the seafarer as he did not divulge during his PEME that he previously underwent a stenting procedure.
The seafarer obtained medical certificates from his chosen doctor which declared him to be permanently unfit to work as a seafarer because of his illness. Armed with said medical certificates, the seafarer filed a claim before the Labor Arbiter claiming payment of disability benefits. The claim was denied by the company on the ground that the seafarer committed fraudulent misrepresentation during his PEME when he did not divulge the fact that he had undergone stenting procedure in 2009.
The Labor Arbiter granted the claim for full disability benefits as no misrepresentation was present on the part of the seafarer considering that his medical condition was known to the company since 2001. On the other hand, the NLRC and the Court of Appeals were one in holding that the seafarer committed fraudulent misrepresentation when he did not reveal his stenting procedure during the PEME and would disqualify him from claiming disability benefits.
Upon reaching the Supreme Court, the claim for disability benefits was again granted.
The provision of the POEA Contract that was in issue was Section 20 E which reads:
A seafarer who knowingly conceals a pre-existing illness or condition in the Pre-Employment Medical Examination (PEME) shall be liable for misrepresentation and shall be disqualified from any compensation and benefits. This is likewise a just cause for termination of employment and imposition of appropriate administrative sanctions.
The Court reminded that where the law speaks in clear and categorical language, there is no room for interpretation and room only for application. In this case, the Court held that nothing can be plainer than the meaning of the word "illness" as referring to a disease or injury afflicting a, person's body. In the same manner, "condition" likewise refers to the state of one's health. Neither of these words refers to a medical procedure undergone by a seafarer in connection with an "illness or condition" already known to the employer as far back as 2001. As such, the employer cannot validly argue seafarer’s supposed concealment and fraudulent misrepresentation of his illness on account of the non-disclosure of the stenting procedure.
The Court further reasoned that the so-called misrepresentation ascribed to the seafarer is more imaginary than real. As it is, the stenting procedure undergone by the seafarer is nothing more than an attempt to discontinue the steady progression of his illness or condition, i.e. CAD/HCVD, which was already known by his employers. The non-disclosure of the stenting procedure does not diminish the company’s knowledge of the illness or condition that the seafarer had already been diagnosed with since 2001. Undeniably then, seafarer's failure to reveal the said procedure does not amount to a concealment of a pre-existing illness or condition that can bar his claim for disability benefit and compensation.
Moreover, the Court held that even if the seafarer’s employment with the company is contractual, the same cannot be validly raised to support misrepresentation. For surely, the knowledge acquired by the company regarding the medical condition of a seafarer is not automatically wiped out and obliterated upon the expiration of a contract and the execution of another.
Almario Leoncio vs. MST Marine Services (Phils.), Inc., et al. and/or Thome Ship Management PTE., Ltd., G.R. No. 230357, December 6, 2017, Third Division, Associate Justice Presbitero Velasco, Jr., ponente
Firm News
With the advent of the Philippines’ Data Privacy Act and its recently issued Implementing Rules & Regulations, DelRosarioLaw proudly announces the opening of a new practice area in data privacy to cater to the needs of its clientele. The practice aims to assist in the client’s compliance with the data privacy rules as well as provide general advice on data security, risk management and regulation.
For more information on the firms’ data privacy practice, please contact Charles Jay Dela Cruz (charles.delacruz@delrosariolaw.com), Florencio Aquino (florencio.aquino@delrosariolaw.com) or Saben Loyola (saben.loyola@delrosariolaw.com).
DelRosarioLaw Managing Associate Gina Guinto was a speaker at the 1st Officers and Crew Dialogue of Rosy Star Ocean Vessels Management, Co., Inc. last 24th January 2018 which was held at the Tropicana Suites Hotel, Malate, Manila. Gina’s discussion centered on Current Legal Issues on Filipino Seafarers Claims and the Seafarers Protection Act.
Many thanks to Rosy Star OVM for your invitation and hope to see you in your future seminars.
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court awards death benefits based on the applicable agreement most beneficial to the heirs
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 28 February 2018 (Issue 2018/04)
Supreme Court awards death benefits based on the applicable agreement most beneficial to the heirs
The seafarer was employed under a duly approved POEA Contract with an overriding collective bargaining agreement (CBA) entered between the company and the Singapore Organization of Seamen (SOS). During the term of his employment, the seafarer died due to multiple organ failure secondary to Septicemia or severe blood poisoning or infection.
The company offered to compensate the heirs with US$40,000 which is half of the death benefits provided under the SOS CBA. This was rejected by the heirs and instead, they claimed benefits under the International Transport Workers Federation (ITF) Agreement in the amount of US$82,500.
The claim of the heirs was favored by the Labor Arbiter, the NLRC and the Court of Appeals where the award of death benefits was based on the ITF Agreement.
However, upon scrutiny of the Supreme Court, the award was reduced based on the provisions of the SOS CBA.
The Court explained that entitlement to benefits of seafarers on overseas work is a matter governed not only by medical findings, but also by law and contract. By contract, the POEA Contract and the CBA bind seafarers and their employers. An overriding instrument, such as an ITF Agreement, also forms part of the covenants of the parties to each other if applicable.
Here, the ITF Agreement presented states that if a seafarer dies through any cause during employment, the heirs shall be entitled to US$82,500 death benefits. The ITF agreement likewise states that it is only applicable if there is a “Special Agreement” made between the union, which is an affiliate of the ITF and the company. The Court, after perusing the evidence of the parties failed to see any Special Agreement between the SOS union and the company to make the ITF Agreement applicable to them. As such, the claim based on the ITF Agreement was disregarded.
As the ITF Agreement is not an overriding instrument in this case, the Court then compared the provisions of the POEA Contract and the CBA to determine which among them is more beneficial to the heirs.
The POEA Contract provides that in case of the work-related death of a seafarer during the term of his contract, the employer shall pay his beneficiaries, among others, US$50,000 death benefits. On the other hand, the CBA states that the company shall pay compensation to a seafarer for any death arising from an accident equivalent to US$80,000. It is further provided that if a seafarer dies from natural causes or illness while in the employment of the Company, the Company shall pay fifty percent of the quantum payable for death.
Comparing the relevant provisions, the SOS CBA clearly provides higher death benefits of US$80,000. However, the cause of death of the seafarer must be due to an accident; otherwise, his beneficiaries would receive only US$40,000. That amount is lower than the benefit granted by the POEA Contract, which is US$50,000. But before beneficiaries may receive compensation under the POEA Contract, there must be substantial evidence that the seafarer died of a work-related illness. Thus, the heirs are entitled to the more beneficial provision of the POEA Contract if his death is proven to have been work-related. Otherwise, the SOS CBA's provision on the grant of USD 40,000 regardless of the cause of death will apply.
In this case, the heirs failed to satisfy the required positive propositions on compensability. First, the tasks performed by the seafarer on-board were not discussed. In fact, the heirs did not even explain how seafarer’s work environment caused his fever and headache, and how these conditions worsened into the alleged fatal illness. Second, given the lack of evidence as regards the seafarer’s actual job, there was absolutely no showing of how his duties or tasks contributed to the development of his illness. Therefore, there could be no basis to conclude that his multiple organ failure secondary to septicemia was contracted as a result of his exposure to the risks of his trade. As such, the POEA Contract will not apply as the heirs failed to prove work-relation of the illness which caused the death of the seafarer.
Nevertheless, as the SOS CBA provision on death benefits does not require work-relation if a seafarer dies during employment due to an illness, the heirs are entitled to the same. As such, the Court ruled that the company was correct to offer US$40,000 death benefits to the heirs as stated in the SOS CBA.
Maersk-Filipinas Crewing, Inc./AP Moller Singapore PTE Ltd. vs. Rosemary Malicse (legal wife of the deceased seafarer Efren Malicse, representing the latter’s estate), G.R. Nos. 200576 and 200626, November 20, 2017, First Division, Chief Justice Maria Lourdes Sereno, ponente
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
↧
Supreme Court rules that the justification of further treatment will determine whether the 120 days or 240 days rule will be followed
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 15 March 2018 (Issue 2018/05)
Holiday Notice: In view of the Lenten / Easter Holidays in the Philippines, our offices will be closed from Thursday, 29 March 2018 to Sunday, 1 April 2018. Our offices will also be closed on 9 April 2018 (Day of Valor) which is a national holiday. Emails will be closely monitored but for urgent matters, please call our 24/7 mobile 63 917 830 8384
Supreme Court rules that the justification of further treatment will determine whether the 120 days or 240 days rule will be followed
Seafarer suffered an ankle injury while working on-board the vessel which necessitated his repatriation. Upon arrival in the Philippines, the seafarer was referred by the company to their designated doctors for further treatment. He underwent surgery and rehabilitation and eventually, after 186 days of treatment, he was declared fit to work by the doctors.
Seafarer was not satisfied with the company-designated doctor’s findings and sought a second medical opinion where his chosen doctor declared him permanently unfit for sea duties. On the basis of this medical certification, the seafarer filed a complaint for disability benefits with the Labor Arbiter.
The Labor Arbiter awarded the seafarer with full disability benefits on the ground that his disability lasted for more than 120 days. Said decision was affirmed by both the NLRC and the Court of Appeals.
On petition, the Supreme Court dismissed the claim.
The Court held that the mere lapse of 120 days from the seafarer's repatriation without the company-designated physician's declaration of the fitness to work of the seafarer does not entitle the latter to his permanent total disability benefits. As already laid down in several decisions, the following guidelines shall govern the seafarer's claims for permanent total disability benefits:
1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total regardless of any justification.
Here, the records reveal that seafarer was medically repatriated on 4 October 2010. It is undisputed that the company-designated physician issued a declaration as to seafarer’s fitness to work on 8 April 2011 or 186 days from his repatriation. Thus, to determine whether seafarer is entitled to his permanent total disability benefits it is necessary to examine whether the company-designated physician has a sufficient justification to extend the period.
Examination of the records would conclude that there is a sufficient justification for extending the period. In a report dated 11 January 2011, the company-designated physician advised seafarer to continue his rehabilitation and medications and to come back on 1 February 2011 for his repeat x-ray of the left foot and for re-evaluation. The company-designated physician has determined that seafarer’s condition needed further medical treatment and evaluation. Thus, it was premature for the seafarer to file a case for permanent total disability benefits on 4 March 2011 because at that time, he is not yet entitled to such benefits. The company-designated physician had until 1 June 2011 or the 240th day from his repatriation to make a declaration as to seafarer's fitness to work.
Neither is the declaration of seafarer’s own doctor that he is unfit to return to sea duties conclusive as to seafarer’s condition. It is well-settled that the assessment of the company-designated physician prevails over that of the seafarer's own doctor. The assessment of the company-designated physician is more credible for having been arrived at after months of medical attendance and diagnosis, compared with the assessment of a private physician done in one day on the basis of an examination or existing medical records.
With the declaration of the company-designated physician that seafarer is already fit to return to work, the latter is not entitled to his permanent total disability benefits.
Teekay Shipping Philippines, Inc., and/or Teekay Shipping Ltd., et al. vs. Roberto Ramoga, Jr., G.R. No.209582, January 19, 2018, First Dvision, Associate Justice Noel Tijam, ponente
Author’s Note: It is significant to note that the doctor is mandated to explain why further treatment will be necessary if it can be fairly anticipated that the initial 120 days treating period will be breached, thus, extending treatment to 240 days. As a matter of fact, in one case, the Court held that mere statement from the company-designated doctor that “further treatment is necessary” is not considered as sufficient justification to extend the 120 days treating period to 240 days. Thus, it is suggested that prior to the lapse of the 120th day of treatment, and aside from an interim disability being issued, the company-designated physician would also state the present complaints of the seafarer, manner of further treatment that the seafarer will still undergo and the desired result of the suggested further treatment.
Firm News
The team in our Firm handling crew matters involving Filipino personnel on-board cruise lines embarked on a courtesy visit to the major cruise companies based in Miami. One encouraging development noted during the visit is that newly-built ships will be launched this year which will translate to more overseas employment opportunities for Filipinos and in turn, fuel up the economy even more. Our sincerest appreciation to our valued hosts, namely: Royal Caribbean Cruises Ltd., Carnival Cruise Lines and Norwegian Cruise Lines for the warm reception accorded to our Attys. Herbert Tria, Catherine Mangahas and Aldrich Del Rosario.
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court denies disability benefits as seafarer's knowledge of pre-existing conditions and intent to deceive the employer were established
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 4 May 2018 (Issue 2018/06)
Holiday Notice:
In view of the local elections to be held in the Philippines, our offices will be closed on Monday, 14 May 2018. Emails will be closely monitored but for urgent matters, please call our 24/7 mobile
63 917 830 8384
Supreme Court denies disability benefits as seafarer's knowledge of pre-existing conditions and intent to deceive the employer were established
Prior to being employed, the seafarer underwent a pre-employment medical examination (PEME). In his examination, the seafarer was required to disclose information regarding all existing and prior medical conditions. The examination specifically required information on 29 illnesses and/or conditions, among which were hypertension and diabetes. The seafarer denied having hypertension and specifically answering "NO" when asked about hypertension and diabetes mellitus. Following his examination, seafarer was declared fit for sea duty and was deployed.
While on board the vessel, seafarer suffered a stroke. He was then admitted to a shore hospital. Eventually, he was repatriated and referred to the company-designated physician. While under company-designated doctor’s care, he repeatedly denied that he had any past history of diabetes and hypertension. After treatment, the company-designated doctor issued a Grade 10 final disability assessment.
Not satisfied with the assessment of the company-designated physician, the seafarer filed a Complaint for maximum disability benefits. He then obtained the opinion of his chosen doctor who stated that he is permanently disabled. The same opinion indicated that seafarer admitted to having had a long history of hypertension and diabetes. He even admitted to Enalapril and Metformin as maintenance medications.
The Labor Arbiter then issued a decision denying the claim for disability benefits because the illness was pre-existing and not work-related. Such ruling was affirmed by both the NLRC and the Court of Appeals.
Upon petition with the Supreme Court, the denial of the claim remained.
The Court held that Section 20 E of the POEA-SEC bars the compensability of disability arising from a pre-existing illness when attended by a seafarer's fraudulent misrepresentation. The POEA-SEC's terminology is carefully calibrated as it does not merely speak of incorrectness or falsity, or of incompleteness or inexactness. Rather, to negate compensability, it requires fraudulent misrepresentation. To speak of fraudulent misrepresentation is not only to say that a person failed to disclose the truth but that he or she deliberately concealed it for a malicious purpose. To amount to fraudulent misrepresentation, falsity must be coupled with intent to deceive and to profit from that deception. Consequently, reasonable leeway may be extended for inability to make complete and fastidiously accurate accounts when this inability arises from venial human limitation and frailty. This is a normal tendency for laypersons-such as seafarers-rendering accounts of their own medical l conditions.
In this case however, the Court found the seafarer to have fraudulently misrepresented himself when he denied having any history of hypertension or diabetes. He did not merely make inaccuracies in good faith but engaged in serial dishonesty. During his PEME, the seafarer was recorded to have categorically answered “No” when asked whether he has ever suffered from or has been told to have hypertension and diabetes. After repatriation and while being treated by the company-designated physician, he again denied that he had any past history of diabetes and hypertension. However, in the medical opinion and evaluation prepared by his own doctor, seafarer was indicated to not only have admitted that he had a past history of hypertension and diabetes, but even that he was regularly taking Enalapril and Metformin respectively to treat the said illnesses. Seafarer's assertion is an admission that he fully knew of his conditions at the moment he was examined, rendering it pointless to consider whether he was merely confused at the time of his examination. Additionally, his assertion burdens him with the task of proving his claims. As he was duty-bound to truthfully answer questions during his examination, seafarer must show that despite his knowledge, he did not willfully or deceptively withhold information.
The seafarer attempted to extricate himself by disavowing the declarations he made in his PEME and claiming that it was the examining physician who failed to accurately reflect his responses on his examination certificate.
The seafarer adequately understood the significance of the declarations attributed to him in his examination certificate. Seafarer's engagement was not his first stint as a seafarer. He had been a seasoned seafarer. His prolonged seafaring experience must have familiarized him with the conduct of PEMEs and the need for him to give truthful answers. He explicitly declared, too, that he was aware of the contents of Sec 20 E [on misrepresentation] in the POEA-SEC. Certainly, his awareness of Section 20 E of the POEA-SEC must have impressed upon him not only the potential complications of what he claims to be a false declaration allegedly foisted on him by the examining physician but also the urgency of rectifying that error. However, he remained silent and did nothing. Seafarer's concession by omission militates against him.
Antonio Manansala vs. Marlow Navigation Phil., Inc./Marlow Navigation Co., Ltd./Cyprus, et al., G.R. No.208314, August 23, 2017, Third Division, Associate Justice Marvic Leonen, ponente
Firm News
Del Rosario & Del Rosario lawyers David Valencia and Ralph Villamor took part in the 2018 Skuld School in Hong Kong. The course was held at the Grand Hyatt Hotel from 11- 12 April 2018. The course was attended by select representatives from different sectors wishing to add to their knowledge of P&I insurance as well as an overview of the industry.
David and Ralph likewise visited the Hong Kong offices of Gard P&I, Steamship Mutual, Swedish Club, West of England, North of England and UKP&I where they had a lively discussion on current trends in Filipino seafarers claims.
Our many thanks to all for your gracious hospitality.
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court upholds grade “11” disability assessment of the company-designated doctor as basis for the award of disability benefits
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 1 June 2018 (Issue 2018/07)
Holiday Notice: Our offices will be closed on Tuesday, 12 June 2018, Philippines Independence Day and Friday, 15 June 2018, Eid-al-Fitr. Emails will be closely monitored but for urgent matters, please call our 24/7 mobile 63 917 830 8384
Supreme Court upholds grade “11” disability assessment of the company-designated doctor as basis for the award of disability benefits
The crew was engaged as Head Wine Waiter. During employment, the crew suffered a back injury after lifting a box of wine and falling on the steel pavement as the vessel rolled. The crew felt a sharp snap on his lower back accompanied by extreme pain radiating down to his lower extremities for which reason he was referred to the ship doctor. Eventually, the crew was repatriated and was placed under the care of the company-designated physician. He was diagnosed with Lumbar Spondylosis, Disc Protrusion, and Disc Bulges. The crew underwent extensive physical therapy and after about three months, was assessed with a grade “11” disability.
The crew then sought consult with his personal doctor who assessed him to be permanently unfit for further sea duties because of his condition. On this basis, he filed a claim for disability benefits before the Labor Arbiter.
Both the Labor Arbiter and the NLRC awarded full disability benefits of US$60,000 to the seafarer. They reasoned that the assessment of the company-designated physician is based on a purely medical schedule that does not consider the loss of earning capacity. The fact that the crew can no longer be employed as a seaman is essentially a total and permanent disability since the principle is that disability is measured by the loss of earning capacity and not on its medical significance.
Upon petition, the Court of Appeals modified the decision of the NLRC and reduced the award to US$7,465 which is the equivalent of a grade “11” disability.
When the case reached the Supreme Court, the award based on the grade “11” assessment of the company-designated doctor was sustained.
Claimant did not follow the third doctor procedure
The Court noted that the rulings of the labor authorities (Labor Arbiter and NLRC) are seriously flawed because they were rendered in total disregard of the POEA-SEC provision, which are deemed written in the contract of employment, on the prescribed procedure in the resolution of conflicting disability assessments of the company-designated physician and the seafarer's doctor.
Under Section 20(A)(3) of the 2010 POEA-SEC, if a doctor appointed by the seafarer disagrees with the assessment of the company-designated doctor, a third doctor may be agreed jointly between the employer and the seafarer. The third doctor’s decision shall be final and binding on both parties. The provision refers to the declaration of fitness to work or the degree of disability. It presupposes that the company-designated physician came up with a valid, final and definite assessment as to the seafarer's fitness or unfitness to work before the expiration of the 120-day or 240-day period. The company can insist on its disability rating even against a contrary opinion by another doctor, unless the seafarer signifies his intent to submit the disputed assessment to a third physician. The duty to secure the opinion of a third doctor belongs to the employee asking for disability benefits. He must actively or expressly request for it.
Here, the crew neither questioned such diagnosis in accordance with the procedure set forth under the POEA-SEC nor contested the company-designated doctor's competence. To reiterate what has already been settled, the referral to a third physician is mandatory and non-compliance with the procedure may militate against the claim for permanent total disability in cases where the company-designated doctor declared otherwise. This is especially so if the seafarer failed to explain why recourse to the said remedy was not made.
The crew’s filing of the claim before the Labor Arbiter was premature in view of the fact that he did not observe the relevant provisions of the POEA-SEC after he received a definitive disability assessment from the company-designated physician. Failure to follow the procedure is fatal and renders conclusive the disability rating issued by the company-designated doctor.
The findings of the company-designated physician is more credible
The Court held that reliance on the assessment of the company-designated physician was justified not only by the law governing the parties under the contract, but by the time and resources spent as well as the effort exerted by the company-designated doctor in the examination and treatment of the crew petitioner while still on board and as soon as he was repatriated.
Based on the medical report of the crew’s personal doctor, it appears that only a single physical examination was done. Said doctor did not conduct any diagnostic tests or procedures to support his assessment of a permanent total disability. This is opposed to the lengthy treatment conducted by the company-designated physician which is backed by laboratory examination and several consultations. Certainly, the assessment of the company-designated physician is entitled to great weight and respect considering that it is more reliable. With his consistent treatment and monitoring of the crew for several months, he had acquired detailed knowledge and familiarity as to the latter's health condition. The upholding of the findings of company-designated physicians is not due to their infallibility but rather, it is assumed that they have closely monitored and actually treated the seafarer and, therefore, are in a better position to form an accurate diagnosis and evaluation of the seafarers' degree of disability.
Disability grading upheld
The Court upheld the grade “11” disability assessment of the company-designated doctor as basis for the award. The Court said that in a previous decision, they have already called attention to a compensation system provided by the POEA-SEC which is often ignored or overlooked in maritime compensation cases. This system is found in Section 32 of the POEA¬SEC which provides for a schedule of disability compensation, in conjunction with Section 20. To our mind, the reason why this compensation system is often ignored or disregarded is the fixation on the 120-day role and the notion that an "unfit-to-work" or "inability-to-work" assessment should be awarded permanent total disability compensation even when the seafarer is given a disability grading in accordance with Section 32 of the POEA-SEC. A NOTE in Section 32 of the POEA¬SEC declares that "any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability." Any other grading, therefore, constitutes only as temporary total disability.
Considering that the POEA-SEC embodies the terms and conditions governing the employment of Filipino seafarers onboard ocean-going vessels, it is about time that the schedule of disability compensation under Section 32 is seriously observed.
G. H. vs. Magsaysay Maritime Corp., Saffron Maritime Limited et al., G.R. No.226103, January 24, 2018, Second Division, Associate Justice Diosdado Peralta, ponente. (Attys. Herbert Tria and Pedrito Faytaren, Jr. of Del Rosario & Del Rosario handled for vessels interests).
GDPR Compliance Notice
The handling of seafarer’s claims involves the handling of personal sensitive data subject to the Philippines’ Data Privacy Act as well as the European Union’s General Data Protection Regulations (GDPR) which came into force on 25 May 2018. The mismanagement/breach of said sensitive data will result into stiff penalties and fines
In line with the GDPR, as well as the directive of the International Group of P&I Clubs, Del Rosario Law and Del Rosario Pandiphil will now be implementing a change in their email subject line which would anonymize the data subject. As such, the subject line of our emails would now only reflect the name of the vessel, incident date, position of the seaman and reference numbers of the recipients (if any) and the sender’s reference number.
We would suggest that in all emails to be sent, other identifiers for individuals be used instead of names to protect the privacy of the data subject. The purpose of this is to ensure that only those directly handling the claim would be able to identify the individual who is the subject matter of the claim.
For ease of transaction, we strongly urge everyone to formulate policies that will further protect the privacy of the data subject but at the same time enable them to identify the subject matter of the email such as the use of reference numbers.
The Clubs have likewise provided guidance on best practices for the treatment of personal data which you may find helpful:
1. Respect - Treat everyone’s personal data with the same respect you would wish for your own.
2. Minimize the generation of personal data by email and on paper – The less personal data being created and circulated, the easier it is to protect. Only send information which is necessary for the handling of the claim.
3. Cybersecurity – Ensure computer systems are secure and make use of security measures such as password protection and secure email servers when transferring attachments containing passports, medical reports, contracts of employment etc. Encryption or secure web portals should be used when appropriate to protect sensitive information.
4. Anonymization – Aim to use identifiers for individuals, like crewmember, broker, surveyor etc. instead of names and dates of birth. Other identifiers could be the vessel name, the nature of the incident, or the port of disembarkation, with a reference number. This applies not just to the subject heading and body of an e-mail but also, where possible, to any documents which support the claim. If there is no alternative to using a name, it is recommended that it is cited with as few other identifiers as possible. It is also intended to adopt this approach for claim descriptions. If these steps are put into practice, it is hoped that, except for those directly handling the claim, it will not be possible to identify the individual who is the subject matter of the claim.
5. Start afresh - If you cannot avoid identifying an individual, do so once and then start a new email so that the same personal data is not repeated in the email chain.
6. Reply all? - Before using “reply all”, check that it is appropriate that everyone in the circulation list should actually receive the e-mail you are about to send.
7. Use official email addresses – Do not use unofficial, private, or any other non-secure email accounts.
8. Clear and lock - Keep your desk clear and your computer screen locked when you are away from your desk. Dispose of hard copy data in a secure manner.
9. Familiarize yourself with GDPR, including how it applies to your business and the penalties for non-compliance.
10. Communicate these guidelines to everyone in your organization.
Implementing the above security measures minimizes the risks arising from handling personal data.
Firm News
Del Rosario & Del Rosario Law Office Partners Charles Dela Cruz and Denise Cabanos together with Managing Associate Ma Gina Guinto-Ambil visited several P&I Clubs, Ship Owners and Ship Managers in Greece and Cyprus from 16 to 28 April 2018.
Aside from several meetings with indusrty 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.
2017 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Insurance, Intellectual Property, Labour & Employment
“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
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Lack of details belies allegation of seafarer that he complied with the three day reportorial requirement
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 13 June 2018 (Issue 2018/08)
Lack of details belies allegation of seafarer that he complied with the three day reportorial requirement
The seafarer was a carpenter who was repatriated due to finished contract and eventually filed a claim for disability benefits more than a year after. He argues that after repatriation, he immediately reported to the company to ask for medical assistance but was denied which prompted him to seek consult with his own doctor. He was then diagnosed with congestive heart failure for which he was hospitalized. On the other hand, the company maintains that the seafarer never voiced any medical concern upon his repatriation. The company did not have further contact with the seaman from that time until they received the complaint which was more than one year from the date of repatriation.
In deciding the claim, the Labor Arbiter and the NLRC, while both determining that seafarer did not comply with the three day rule, had conflicting rulings.
The Labor Arbiter awarded full disability benefits to the seafarer despite the fact that it was established at that stage that seafarer did not comply with the three day rule reportorial requirement. The reason of the Labor Arbiter in awarding the claim was because the proximity of the date of repatriation and the time the complainant was admitted to the hospital for his illness (about three weeks) is too close that it leads to the conclusion that complainant's ailment was work-aggravated during the term of his contract. The Labor Arbiter also ruled that the seafarer was justified in not complying with the mandatory reporting requirement within three days from repatriation because he was not medically repatriated.
On the other hand, the NLRC dismissed the claim for failure of the seafarer to comply with the three day reportorial requirement. It brushed aside the allegations of the seafarer that he reported to the company for medical assistance as mere self-serving assertions without any evidence to back them up.
The matter was elevated to the Court of Appeals who reinstated the award of benefits and found that the seafarer tried to comply with the three day reportorial requirement but was refused and ignored by the company.
In evaluating the different findings and decisions of the Labor Arbiter, NLRC and the Court of Appeals, the Supreme Court examined the evidentiary facts of the case and chose to uphold the findings of the NLRC.
The Court held that the Labor Arbiter erred in not applying the three day rule just because the seafarer was not medically repatriated. The Court noted that the only exception under the POEA Contract for a seafarer to be exempted from the rule is that when he is physically incapacitated to do so and that he submits a written letter to the company within the same period.
In the same manner, the Court disagreed with the findings of the Court of Appeals that the seafarer requested from the company that he be referred to medical examination. The Court noted that the seafarer presented no witnesses that would support his allegations. He did not even bother to mention whom he talked with in the company's office. He did not even relay how his request for medical treatment was supposedly refused, and by whom. No date was even alleged as to when the refusal was made. The lack of details on the part of the seafarer did not speak well of the truthfulness of his allegations which the Supreme Court considered as self-serving. As such, the claim of the seafarer was denied for his failure to comply with the three day reportorial requirement under the POEA Contract.
Manila Shipmanagement & Manning Inc., and/or Hellespont Hammonia GmbH & Co. K.G. et al. vs. R. A., G.R. No. 217135, January 31, 2018, Second Division, Associate Justice Andres Reyes, ponente
MARINA requests information on seafarers who were granted medical claims
On 25 May 2018, the Maritime Industry Authority (MARINA) sent a letter to all manning agencies in the Philippines requesting for a list of seafarers who were granted medical claims with corresponding description and date of issuance as well as necessary details that it may use in the evaluation of medical certificates as one of the requirements for the issuance a Certificate of Competency (COC), Certificate of Endorsement (COE) and Certificate of Proficiency (COP). The request of the MARINA was prompted by complaints from various shipping companies, principals and manning agents of seafarers who were issued with said certificates despite the fact that they were considered disabled and already paid medical/disability benefits.
In reply to a query, MARINA clarified that they are referring to disabilities that will warrant the non-issuance of a COC/COE and those that will be in violation of Regulation I/9 of the STCW Convention such as a “full disability”. MARINA has also requested the manning agencies to put in the “remarks” section the factors that may limit a seafarer’s ability to perform his duties for a specific period for their evaluation. The amount of benefits provided to the seafarer is not required to be given to MARINA.
As to the interplay of MARINA’s request with the Data Privacy Act, MARINA justified that they have the authority to make this request under the law as said information is necessary for them to carry out their regulatory functions.
Firm News
Del Rosario Pandiphil’s Edgardo Antonio A. Del Rosario, MD, Ruth F. Manalo, RN and Irish C. Villafuerte, RN participated as resource speakers in the Officers Dialogue of Multinational Maritime Inc, MMSPhil Maritime Services Corp. and Phil-Crewing Maritime Services Inc. held at their newly inaugurated office located in Cavite City last April 21, 2018.
Their topic is “The Issue on the Increasing Trend of Suicide Onboard”, followed by an actively participated open forum.
We would like extend our sincerest thanks to the organizers for their invitation and warm reception during this event and we hope to see you all again soon.
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
↧
Supreme Court declares premature the filing of a complaint for disability benefits while seafarer under treatment
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 2 July 2018 (Issue 2018/09)
Supreme Court declares premature the filing of a complaint for disability benefits while seafarer under treatment
Seafarer was an Able Seaman who experienced pain in his inguinal area and pelvic bone during employment. After being seen by a shore doctor, he was eventually repatriated for further medical treatment. Upon repatriation, the company referred him to its designated physician on 8 February 2010 who diagnosed the seafarer with “Epididymitis, right, Varicocoele, left”. Seafarer underwent surgery and treatment with the company-designated physician. While still undergoing treatment with the company-designated physician, the seafarer filed a complaint for disability benefits on 20 July 2010 and consulted his own doctor on 12 August 2010 where he was declared to be unfit to resume duties with additional finding of essential hypertension. Eventually, the company-designated physician declared the seafarer fit to work on 24 August 2010.
The Labor Arbiter gave credence to the findings of the seafarer’s personal doctor and awarded disability benefits to the seafarer. Said award was echoed by both the NLRC and the Court of Appeals by holding that the disability of the seafarer is total and permanent as the fit to work certification of the company-designated physician was issued after more than 120 days.
Upon reaching the Supreme Court, the decisions of the tribunals below were set aside and the claim was dismissed.
The Court found serious error when the NLRC and the Court of Appeals declared the disability of the seafarer to be permanent and total just because of the lapse of 120 days. The Court again reminded that the 120 days rule was already clarified that the same can be extended to 240 days if further medical treatment is needed. Based on the evidence presented in this case, it was clear that the seafarer underwent extensive treatment with the company-designated physician which justified the extension to 240 days.
At the time that the seafarer filed his complaint, he was just under treatment for 162 days and without a definite assessment from the company-designated physician, his condition cannot be considered as total and permanent. It will only become permanent when the company-designated physician, within 240 days, declares it to be so or when after the lapse of said period, he fails to make such a declaration.
As such, at the time that the complaint was filed, seafarer was still under a state of temporary disability. Therefore, his cause of action for permanent and total disability benefits has not yet accrued which will make his complaint premature.
The Court also noted the fact that the seafarer failed to comply with the dispute resolution procedure of the POEA Contract in the event of contradicting opinions from the company-designated physician and his personal physician. This is precisely so because at the time the seafarer sought the opinion of his personal doctor, there was yet no final assessment issued by the company-designated physician. While the seafarer is not precluded from obtaining a second medical opinion from his chosen doctor, this is on the presumption that the company-designated physician has already issued a final medical assessment which he finds disagreeable.
Scanmar Maritime Services, Inc. and Crown Shipmanagement, Inc. vs. C. H., G.R. No. 211187, April 16, 2018, First Division, Associate Justice Mariano Del Castillo, ponente
Firm News
DelRosarioLaw Senior Partner Charles Jay Dela Cruz was recently re-elected as Board Trustee and Corporate Secretary of the Philippines Norway Business Council (PNBC). PNBC is a non-profit organization which aims to promote closer economic and friendly relations between Philippines and Norway and serves as a forum for exchange of views on business and commercial dealings in both domestic and international settings. DelRosarioLaw acts as legal advisor to PNBC.
Aside from serving in such Boards, Charles is usually invited to speak in various for a. He just spoke on the “Nuances of Retirement Law in the Philippines” at the 1st HR Compliance Conference held on 19-20 June 2018 at the SMX Aura Convention, BGC.
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court denies claim based on disc desiccation for failure to substantiate work-relation
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 27 July 2018 (Issue 2018/10)
Supreme Court denies claim based on disc desiccation for failure to substantiate work-relation
Seafarer was engaged as Chief Cook on-board the vessel. Two months into his employment, the seafarer wrote a letter to the company requesting for his early repatriation to attend to a family problem. The company then granted seafarer’s request.
Upon repatriation, and unknown to the company, the seafarer sought consult with his doctor and was diagnosed with multiple disc desiccation from C2-C3 to C6-C7. Seafarer underwent physical therapy sessions and then consulted another doctor who assessed him to be permanently disabled and no longer fit to work as a seafarer. On this basis the seafarer filed a complaint for disability benefits with the Labor Arbiter.
The seafarer disavowed that he sought early repatriation due to a family concern and instead argued that he was forced to write such a request because of the animosity between him and the Master of the vessel which stemmed from the complaint he presented to his union resulting to the arrest of the vessel. He also claimed that he reported his back pains to the Master but was not minded because of the animosity between them. Upon repatriation, he sought assistance with the company but was also not minded.
On the other hand, the company argued that the seafarer did not present any medical complaints during employment and in fact, he requested for the early termination of his contract due to a family problem. The seafarer also did not seek medical assistance and referral to the company-designated physician upon his repatriation.
The Labor Arbiter, NLRC and the Court of Appeals were one in denying the claim of the seafarer as he failed to prove that he suffered the medical condition during employment and that he is disqualified to receive compensation for failure to undergo a post-employment medical examination with the company-designated physician.
The Supreme Court affirmed the denial of the claim.
Seafarer failed to undergo post-employment medical examination with the company-designated physician
The Court reiterated that the POEA Contract states the procedure in assessing claims for disability benefits. It mandates the seafarer to see the company-designated physician within three days from repatriation for a post-employment medical examination. Failure to comply with such procedure shall be ground for denial of the benefits.
The reason for the strict compliance of the rule is that during the three day period, it is fairly manageable for the doctor to determine whether the condition is work-related of the working conditions increased the risk of contracting the ailment.
Nevertheless, while the seafarer has the obligation to report to the company-designated physician, the employer has the reciprocal obligation to conduct a meaningful and timely examination of the seafarer.
In this case, the Court did not give credence to the allegations of the seafarer that he sought medical assistance from the company immediately after repatriation. The Court noted that the seafarer merely alleged without any details the fact that he was denied access to the company-designated physician without stating when the request was made, who in the company denied his request and the manner by which this was done.
In the same manner, the argument of the seafarer that he was denied medical examination by the company because of the animosity created when he complained to his union was also shot down by the Court for lack of evidence.
The seafarer further alleged that the cause of the friction between him and the company was because he brought to the attention of his union the death of a colleague due to over fatigue. However, the seafarer did not even produce any documents to prove that a colleague had indeed died and worse, did not even state his name. He likewise failed to present any evidence which would show that he reported the alleged incident to his union and the union’s reply thereto. Lastly, while the seaman alleged that his complaint to the union was the basis of the vessel being arrested, he failed to present evidence to attest to this fact.
In the absence of evidence, the Court did not give credence to the allegations of the seaman and upheld the findings of the lower tribunals.
Seafarer failed to prove work-relation of his medical condition
The Court further explained that there are two requirements for a medical condition to be compensable: (1) that the illness or injury must be work-related and (2) the work-related illness or injury must have existed during the term of seafarer’s employment. To be “work-related” is to say that there is a reasonable linkage between the disease suffered by the employee and his work.
Medical literature underscores seafarer’s affliction – disc desiccation – as a degenerative change of intervertebral discs, the incidence of which climbs with age and is a normal part of disc aging. Hence, it is not a condition peculiarly borne by the seafarer’s occupation. Moreover, the seafarer was engaged to serve not merely as a regular cook but as a Chief Cook. While this designation does not absolutely negate occasions of physical exertion, it can nevertheless be reasonably inferred that his engagement does not principally entail intense physical labor as would have been the case with other seafarers such as deckhands.
Likewise, seafarer was repatriated merely two months after being engaged on-board the vessel. The brevity of his engagement contradicts the likelihood that his disc desiccation- a degenerative condition requiring prolonged conditions – was within a period of exposure necessary to contract it.
A. E. vs. Southfield Agencies, Inc. Wilhelmsen Ship Management Holding Ltd. et al., G.R. No. 208396, April 30, 2018, Third Division, Associate Justice Marvic Leonen, ponente (Attys. Charles Jay Dela Cruz and Richard Sanchez of DelRosarioLaw handled for vessel interests)
Firm News
The Asia Business Law Journal has named Managing Partners Arturo Del Rosario, Jr. and Ruben Del Rosario and Senior Partner Joseph Rebano as one of the Philippines Top 100 Lawyers in their recently published list.
Arturo was recognized in the field of Maritime Litigation and Intellectual Property Law. Ruben was cited in the field of Maritime Litigation, Personal injury and Multimodal Transport. On the other hand, Joseph was acknowledged in the field of Admiralty and Related Investigation and Disputes.
According to the Asia Business Law Journal, the list is based on their extensive research relying on thousands of in-house counsel in the Philippines and around the world, as well as Philippines-focused partners at international law firms, and asked them to nominate private-practice lawyers. Nominations were made by professionals at a wide range of Filipino and global companies and law firms.
The list reflects the nominations received, combined with the Asia Business Law Journal editorial team’s more than 30 years of collective experience in documenting and analysing the Philippines legal market.
The Top 100 list of lawyers can be accessed as follows:
https://www.vantageasia.com/asia-business-law-journal/Philippines-lawyers/#INTRODUCTION
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court states requirements for concealment of a pre-existing medical condition to be validly raised as a defense against a claim for disability benefits
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 17 August 2018 (Issue 2018/11)
Holiday Notice: Our offices will be closed on Tuesday, 21 August 2018, Ninoy Aquino Day and Monday, 27 August 2018, National Heroes Day. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Supreme Court states requirements for concealment of a pre-existing medical condition to be validly raised as a defense against a claim for disability benefits
Seafarer was engaged as Master by the company. After passing the required pre-employment medical examination (PEME for short), he boarded the vessel and commenced his employment.
While in the performance of his duties, seafarer felt sudden numbness on the left side of his body and noticed that his speech was slurred. He was immediately provided first aid and his condition allegedly improved after taking an Isordil tablet which he personally brought to the vessel. On the next day, his symptoms recurred which did not improve despite taking another dose of Isordil. Thus, seafarer was brought to a local hospital where he was confined and underwent physical therapy. He was diagnosed with ischemic cerebrovascular accident. He was then recommended for further treatment upon return.
Upon repatriation, the seafarer was referred by the company to their designated doctors where he was diagnosed with “Cerebrovascular Infarct Middle Cerebral Artery, Right and Hypertension”. The company-designated doctor issued an opinion that the illness is not work-related considering that the risk factors for cerebrovascular infarct (brain stroke or cerebrovascular accident) were hypertension, Diabetes Mellitus, smoking, lifestyle, dyslipidemia, family history, age, and sex, while the cause for hypertension was multifactorial in origin which included genetic predisposition, poor lifestyle, high salt intake, smoking, Diabetes Mellitus, age, and increased sympathetic activity.
Meanwhile, the company-designated Cardiologist explained that the medicine (Isordil) brought by the seafarer on board the vessel is a medication used to treat patients with angina (chest pain), and that while the latter denied taking any maintenance medications, the company-designated Cardiologist opined that possession of the same suggests that he may be experiencing some symptoms for which he was given that medications previously.
The seafarer then filed a complaint for disability benefits based on the provisions of a collective bargaining agreement (CBA for short) alleging that despite the lapse of 120 days, he is still unfit to work as his condition did not improve. The company disputed the claim arguing that the seafarer is disqualified to receive benefits as he committed fraudulent concealment when he did not disclose in his PEME that he had a previously diagnosed medical condition for which he was prescribed Isordil.
In the interim, the seafarer sought medical consult with another doctor who assessed him to be permanently unfit for work.
The Labor Arbiter awarded full disability benefits of US$60,000 to the seafarer under the POEA Contract and held that there was no concealment considering that seafarer’s possession of Isordil did not mean that he was hypertensive and under medical maintenance. This was echoed by the NLRC but the award was increased to reflect the CBA rates of US$151,470 in disability compensation. The NLRC held that the CBA contemplates all kinds of accident or unforeseen events that cause physical harm or injury to the body, and that the illness suffered by the seafarer was an unforeseen event that physically injured the brain. On petition, the Court of Appeals affirmed the ruling of the NLRC.
The Supreme Court affirmed the conclusion of the lower tribunals but modified the award based on the POEA Contract.
Requirements for concealment as a defense; no direct relation between Isordil and hypertension was shown
The Court has noted that a seafarer who knowingly conceals a pre-existing illness or condition during the PEME shall be disqualified from compensation under the POEA Contract.
Under the POEA Contract, an illness shall be considered as pre-existing if prior to the processing of the POEA contract, any of the following conditions is present: (a) the advice of a medical doctor on treatment was given for such continuing illness or condition; or (b) the seafarer had been diagnosed and has knowledge of such illness or condition but failed to disclose the same during the PEME, and such cannot be diagnosed during the PEME.
According to the Court the above requirements were not met here.
The Court explained that Isordil tablets are taken for the prevention of angina pectoris or chest pain due to coronary artery diseases. It is, however, not a medication directly used for hypertension, which illness the company claimed seafarer to be suffering from prior to his engagement, as well as the reason for his repatriation. To properly determine whether a person suffers from hypertension, it is imperative that he or she undergoes medical check-ups, and consequently, procures a diagnosis from a medical doctor. In this case, no such diagnosis was presented by the company.
Moreover, there was no clear showing that seafarer was taking Isordil as maintenance medication for his hypertension or that it was the appropriate medication for his condition that gave rise to his brain stroke. At the most, the company submitted the opinion of a specialist, claiming that seafarer may have previously experienced some symptoms of hypertension for the bare reason that he had with him Isordil. This opinion deserves scant consideration as the same is clearly tentative and speculative in nature. In the final analysis, the company failed to demonstrate that seafarer's act of carrying Isordil in itself conclusively established the fact he had actual knowledge of his medical condition, and consequently, concealed the same in his PEME. At any rate, if the seafarer had been suffering from a pre-existing hypertension at the time of his PEME, the same could have been easily detected by standard/routine tests conducted during the said examination, i.e., blood pressure test, electrocardiogram, chest xray, and/or blood chemistry. However, seafarer's PEME showed normal blood pressure with no heart problem, which led the PEME doctor to declare him fit for sea duty.
The medical condition is compensable
The Court noted that hypertension is listed as an occupational disease in the POEA Contract.
In the POEA Contract, end organ damage resulting from uncontrolled hypertension is an occupational disease if there is impairment of function of the organs such as kidneys, heart, eyes and brain. If the seafarer is not known to have hypertension, his last PEME should show a normal blood pressure, chest x-ray and ECG/treadmill test.
In this case, records show that seafarer’s brain stroke was brought about by his hypertension which occurred only while in the performance of his duties as a Master. There was no indication that seafarer was known to be previously suffering from hypertension, and considering further that his last PEME showed normal blood pressure, chest x-ray and ECG results, his illnesses and the resulting disability were correctly declared to be compensable.
The CBA is not applicable
The Court clarified that seafarer's disability benefits should be awarded pursuant to the provisions of the POEA Contract, and not the CBA as held by the NLRC and the Court of Appeals. To be entitled to compensation in accordance with the CBA, a seafarer must suffer an injury as a result of an accident, which is defined in case law as "an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated; an unforeseen and injurious occurrence not attributable to mistake, negligence, neglect or misconduct. Accident is that which happens by chance or fortuitously, without intention and design, and which is unexpected, unusual and unforeseen". Here, the seafarer was suffering from an occupational disease; hence, it cannot be said that seafarer figured in an accident.
Philsynergy Maritime, Inc. and/or Trimurti Shipmanagement Ltd. vs. C. G., G.R. No. 228504, June 6, 2018, Second Division, Associate Justice Estela Perlas-Bernabe, ponente
Author’s Note: It was not mentioned in the case if there was an argument on the part of the company that notwithstanding the relation between the medication taken by the seafarer and his ailment which caused the disability, concealment was still present in the case. This is because the seafarer did not declare that he was provided medications for a certain illness during the time he took his PEME. In any event, the Supreme Court should have taken note of this fact and still considered that concealment existed even if what was concealed was not the reason for repatriation. Had the company knew of this material medical information prior to the employment of the seafarer, then this would have provided them further basis to evaluate whether they will still hire the seafarer.
Firm News
DelRosarioLaw Senior Partner Charles Jay Dela Cruz was elected as member of the Board of Trustees of the Philippine Bar Association (PBA) for the term 2018-2019. Founded in 1891, PBA is the oldest and most prestigious voluntary national organization of lawyers in the Philippines.
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court denies claim based on cerebrovascular accident for failure to substantiate work-relation
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 25 September 2018 (Issue 2018/12)
Supreme Court denies claim based on cerebrovascular accident for failure to substantiate work-relation
Seafarer was engaged as Third Mate on-board the vessel after passing his pre-employment medical examination. While performing his regular tasks, the seafarer felt dizzy and started to feel the left side of his body getting numb. The seafarer’s condition deteriorated and was brought to a hospital where he was confined and was diagnosed to have suffered from cerebrovascular disease: "left cerebellar infarct" and hypertension, Stage 2”. Subsequently, the seafarer was repatriated and upon arrival, he was immediately brought to the company-designated physician where he underwent CT scans of the head and heart. In his letter addressed to the company, the company-designated physician reported that the result of the CT scan conducted on the seafarer showed, among others, that he has an "old infarct in the left superior aspect of the left cerebellum." The company-designated doctor also issued an opinion that the illness is not work-related. The seafarer no longer reported back to the company-designated physician.
Subsequently, seafarer consulted another physician who diagnosed him to be suffering from Hypertensive Atherosclerotic Cardiovascular Disease and Cerebrovascular Disease which is work-related and was advised to cease from working as a seaman due to his neurologic deficits. On the basis of the findings of his own doctor, the seafarer filed complaint praying for among others, disability benefits.
Both the Labor Arbiter and the NLRC dismissed the claim as the seafarer failed to establish that his illness was work-related or work-aggravated. In direct contrast, the Court of Appeals granted the claim and awarded disability benefits to the seafarer.
When the case reached the Supreme Court, the claim was dismissed.
Seafarer failed to establish work-relation of his illness
The Court held that for disability to be compensable under the POEA Contract, two elements must concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract. To be entitled to compensation and benefits under the POEA Contract, it is not sufficient to establish that the seafarer's illness or injury has rendered him permanently or partially disabled; it must also be shown that there is a causal connection between the seafarer's illness or injury and the work for which he had been contracted. In other words, while the law recognizes that an illness may be disputably presumed to be work-related, prevailing jurisprudence requires that 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. Thus, the burden is placed upon the claimant to present substantial evidence that his work conditions caused or at least increased the risk of contracting the disease.
In this case, the seafarer was unable to present substantial evidence to show that his work conditions caused, or at the least increased the risk of contracting his illness. Neither was he able to prove that his illness was pre-existing and that it was aggravated by the nature of his employment. He also failed to demonstrate that he was subjected to any unusual and extraordinary physical or mental strain or event that may have triggered his stroke. His claims are mere general statements presented as self-serving allegations which were not validated by any written document or any other evidence visibly demonstrating that the working conditions on board the vessel served to cause or worsen his illnesses.
Findings of the seafarer’s doctor not given weight
The Court noted that there is no evidence to prove that the findings of seafarer's private physician were reached based on an extensive or comprehensive examination of the seafarer. In the Medical Certificate issued by the seafarer’s doctor, it was only mentioned that the illness was "due to the nature of patient's work and the working conditions/environment on board vessel" and, by reason of which, "patient is no longer advised to work especially as a seaman due to his ... neurologic deficits."
Aside from said Medical Certificate, the seafarer failed to present competent evidence to prove that he was thoroughly examined by his own doctor. No proof was shown that laboratory or diagnostic tests nor procedures were taken. In fact, seafarer’s personal doctor did not specify the medications he prescribed and the type of medical management he made to treat the condition. It was also not sufficiently justified as to how he came to the conclusion that seafarer's illnesses started at work or are work-related and that, by reason of such illnesses, seafarer was no longer fit to work. At most, the said Medical Certificate is a mere summary and generalization of the seafarer’s medical history and condition based on a one-time consultation.
Loadstar International Shipping, Inc. vs. E. Y., G.R. No. 228480, April 23, 2018, Second Division, Associate Justice Diosdado Peralta, ponente
Firm News
DelRosarioLaw welcomes Joahnes Crizelle T. Ibarra as a Junior Associate of the firm. She is a 2009 Sociology graduate from University of the Philippines, Diliman and a 2014 Juris Doctor of Laws from Ateneo de Manila University.
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
↧
Supreme Court denies claims on the basis of the third doctor rule
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 19 October 2018 (Issue 2018/13)
Holiday Notice: Our offices will be closed on Thursday, 1 November 2018 and Friday, 2 November 2017 due to All Saints’ Day and All Souls’ Day respectively. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Supreme Court denies claims on the basis of the third doctor rule
In two separate decisions, the Supreme Court denied the claims of seafarers as they were in violation of the conflict resolution procedure under the POEA Contract or the third doctor rule.
The current third doctor rule is found in Section 20 A (3) of the POEA Contract which states that if the doctor of the seafarer disagrees with the assessment of the company-designated physician, a third doctor may be jointly agreed upon between the parties whose decision shall be final and binding on them. According to the Supreme Court, the third doctor rule is mandatory and non-compliance with the same would result in the upholding of the findings of the company-designated physician.
In one case, the seafarer was medically repatriated due to upper back pains and was referred to the company to the company-designated physician for further treatment. After a series of consultations and diagnostic examinations, the seafarer was assessed with a grade “10” disability. Pursuant to the grade “10” assessment, the company offered to compensate the seafarer. However, the seafarer refused the offer and insisted on payment of maximum disability benefits on the belief that he is entitled to such because he can no longer go back to work.
The Labor Arbiter denied the claim of the seafarer and instead adjudged him entitled only to benefits equivalent to grade “10”. The seafarer then appealed to the NLRC. During the pendency of his appeal, the seafarer consulted his own doctor who issued a report assessing him to be unfit to resume sea duties. He submitted said report to the NLRC and on which basis, he was awarded maximum disability benefits. Eventually, the case went all the way up to the Supreme Court who adjudged the seafarer to be entitled only to benefits equivalent to a grade “10” disability.
The Supreme Court said that the only instance when the assessment of the company-designated physician may be challenged is when the seafarer likewise consulted with his personal doctor who issued a different assessment. The conflicting assessment shall be settled by referring the matter to a neutral third party doctor whose assessment shall be final and binding. The Court noted that the seafarer only sought a second medical opinion after the denial of his claim by the Labor Arbiter and while his appeal was pending with the NLRC. This move is but a mere afterthought and in breach of the third doctor rule. As such, the assessment of the company-designated physician was eventually sustained.
In another case, the Supreme Court also denied a claim based on this third doctor rule.
There, the seafarer was declared fit to work by the company-designated physician after suffering from Inguinal Hernia. Ten months after, the seafarer consulted his own doctor who assessed him to be suffering from a grade “1” disability. On this basis, the seafarer filed a claim for disability benefits.
Both the Labor Arbiter and the NLRC denied the claim but the Court of Appeals awarded disability benefits to the seafarer.
In ruling for the company, the Supreme Court again made reference to third doctor rule. The Court faulted the seafarer in immediately filing a complaint for disability benefits after he was issued an assessment by his personal doctor instead of initiating the conflict resolution procedure in the POEA Contract which is to refer the differing assessments to a mutually agreed third doctor. With such failure to follow the procedure, and in the absence of the opinion coming from a third doctor, the Court sustained the findings of the company-designated physician.
R. T. vs. MST Marine Services (Phils), Inc. TSM International Ltd. et. al.; MST Marine Services (Phils), Inc. TSM International Ltd. et al. vs. R. T., G.R. Nos. 202113 and 202120, June 6, 2018, Second Division, Associate Justice Andres Reyes, ponente (our Attys. Charles Dela Cruz and Ralph Villamor handled for vessel interests)
Abosta Shipmanagement Corporation, Panstar Shipping Co., Ltd. et al, vs. R. D., G.R. No. 215111, June 20, 2018, First Division, Associate Justice Mariano Del Castillo, ponente (our Attys. Joseph Rebano and Jerome Pampolina handled for vessel interests)
Firm News
Partners Herbert Tria, Florencio Aquino and Senior Associate Aldrich Del Rosario visited our friends in Holland America Line, Wind Star Cruises, Princess Cruises and Crystal Cruises in the west coast of the USA in September 2018. During their visit, they discussed latest developments impacting the cruise industry and the Philippine arbitration system.
Our heartfelt thanks for the warm and gracious welcome provided to DelRosarioLaw and we surely are looking forward to our next round of fruitful discussions.
Senior Associate Aldrich C. Del Rosario was a speaker at the crew conference of Lomar Shipping and Scanmar Maritime Services last 11 October 2018. He spoke on duties and benefits of seafarers under the POEA Standard Employment Contract.
Many thanks to Lomar Shipping and Scanmar Maritime Services for the kind invitation and see you again in your future conferences.
Partner Charles Dela Cruz, Managing Associate Gina Guinto and Del Rosario Pandiphil’s Executive Manger Veronica Del Rosario visited several Clubs in the United Kingdom and Sweden early October 2018. They had several interactive meetings with partner-clients on various issues such as Filipino crew claims, NLRC and voluntary arbitration procedures as well as updates on relevant legislations such as The Seafarer's Protection Act and Data Privacy Act.
Our deepest thanks to all for the warm reception and great discussions.
reas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court rules that third doctor mechanism may be activated even after complaint has been filed; urinary bladder cancer held compensable
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 8 November 2018 (Issue 2018/14)
Holiday Notice: Our offices will be closed on Friday, 30 November 2018 (Bonifacio Day). Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Supreme Court rules that third doctor mechanism may be activated even after complaint has been filed; urinary bladder cancer held compensable
Seafarer was constantly engaged by the company for a period of almost 21 years as Quarter Master on-board its vessels. During the last engagement of the seafarer, he noticed blood in his urine which prompted him to seek consultation. After a series of tests, he was repatriated for further treatment and referred to the company-designated physician who diagnosed him with urinary bladder cancer. After a series of treatment and tests, the company-designated physician assessed the seaman with a grade “7” disability. The said doctor likewise stated that the risk factors for urinary bladder cancer include occupational exposure to aromatic amines and cigarette smoking.
The seafarer then consulted his own doctor who assessed him to be permanently unfit to work. On this basis, the seafarer engaged counsel who wrote a letter to the company claiming full disability benefits and informing them of the second medical opinion they obtained. Eventually, the seafarer filed a formal complaint with the National Conciliation and Mediation Board (NCMB)/Voluntary Arbitrator (VA).
The company denied the claim considering that the illness of the seafarer is not work-related and even if it is work-related, the entitlement should only be limited to the equivalent of the disability grading issued. Further, the company argued that the seafarer failed to comply with the third doctor procedure under the POEA Contract when the second medical opinion was only presented after the complaint was filed.
The VA ruled in favor of the seafarer and awarded him maximum disability benefits and held that the company-designated doctor’s assessment is not reflective of the seriousness of the seaman’s condition. On the other hand, the Court of Appeals modified the award to that equivalent to the grade “7” assessment of the company-designated doctor.
When the case reached the Supreme Court, the VA’s award for maximum disability benefits was reinstated.
Urinary bladder cancer held compensable
The Supreme Court noted that the company-designated doctor mentioned in his medical opinion that one of the risk factors for the seafarer in acquiring urinary bladder cancer was occupational exposure to aromatic amines. This statement from the company-designated doctor is tantamount to a declaration that the illness of the seaman is work-related as his occupation exposed him to risks of acquiring his illness. Also, the Court noted that the seaman was with the company for almost 20 years and such, it is plausible to conclude that seafarer’s work may have caused, contributed or at least aggravated his illness.
Third doctor procedure may be activated even after filing of the complaint
The Court again explained that under the POEA Contract, if the doctor of the seafarer disagrees with the assessment of the company-designated physician, the parties may mutually appoint a third doctor whose assessment shall be final and binding. This third doctor procedure is mandatory and if the seafarer fails to do this by presenting to the company a second medical opinion, then the assessment of the company-designated physician will be upheld.
It was argued by the company that the second medical opinion of the seafarer was brought to its attention only during the conferences of the case with the VA and after the complaint had already been filed. As such, there was failure on the part of the seafarer to properly communicate the second medical opinion which is a breach of the third doctor procedure.
The Court noted that when the seafarer sent a letter to the company, this already signified his intention to refer the matter to a third doctor so that a final and binding assessment may be issued. As such, said intent should have moved the company to activate the third doctor procedure.
The Court further held that the POEA Contract does not require a specific period within which the parties may seek the opinion of a third doctor, and they may do so even during the conferences before the labor tribunals. Accordingly, upon being notified by the seafarer prior to or during the mandatory conferences before the labor tribunals, the burden to refer the case to a third doctor has shifted to the company. As the company did not act on the referral to a third doctor, the findings of the company-designated physician is not binding.
A. I. vs. NYK-Fil Ship Management, Inc./International Cruise Services, Ltd. et. Al., G.R. No. 237487, June 27, 2018, Third Division, Associate Justice Presbitero Velasco, Jr., ponente
Firm News
DelRosarioLaw welcomes Ruben Jose G. Del Rosario Jr., as a Junior Associate of the firm. He is a 2011 Bachelor of Science in Management, Major in Legal Management graduate of Ateneo de Manila and a 2017 Bachelor of Laws graduate of San Beda College - Alabang.
Partner Charles Dela Cruz spoke on "Nuances of Retirement Law in the Philippines" at the 2nd HR Compliance Conference held on September 25-26, 2018 at SMX Aura Convention in Bonifacio Global City. It is a fitting follow through to the earlier edition this year also participated in by Atty. Dela Cruz. The Conference was based on the theme: "Sharpening the Saw of the HR Practitioner in Employment and Wage Laws".
Partners Charles Dela Cruz and Herbert Tria spoke on “Current Crew Claims Handling Issues related to the Data Privacy Act” at the 7th Annual Magsaysay Shipping and Logistics’ Marine Insurance Seminar held on 21 September 2018 at Robert Hall, Times Plaza Building, Manila. This year’s theme was “Key Challenges Facing Shipping and Logistics Supply Chain”.
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
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. To subscribe or for further information, please email ruben.delrosario@delrosario-pandiphil.com .
↧
Supreme Court denies claim based on lung cancer due to seafarer's history of smoking
|
|
|
|
|
|
|
|
|
↧
Supreme Court holds that disability shall be determined by the assessment of the company-designated physician issued within 120/240 days
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 17 December 2018 (Issue 2018/16)
Holiday Notice: In view of the Christmas holidays, our offices will be closed on 24-25 December 2018, 31 December 2018 and 1 January 2019. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Season’s Greetings
Dear clients and friends,
Christmas is the season we thank you, our clients and friends, for all the support given to us during the year. All 98 of us truly thank you and we do hope we have given you the service you deserve.
As we embark on our 42st year, we deeply appreciate all the kind words you have given us and embrace the criticisms as it does keep us working to strive better.
Del Rosario continues its CSR programs. This year we donated four houses to poor families in Bohol thru the Balay sa Kabos Foundation Inc. We continue our 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 hundreds of orphaned and abandoned children.
We wish all of you and your family the best of the season and may the coming year 2019 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 any Filipino seafarer 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
MERRY CHRISTMAS AND A HAPPY NEW YEAR
Ruben Del Rosario / Arturo Del Rosario
Charles Jay Dela Cruz / Joseph Rebano / Herbert Tria
Denise Cabanos / Florencio Aquino / Catherine Mangahas-Soliven / Pamela Coseip-Abarico / Saben Loyola
Veronica Del Rosario-Aguinaldo / Josie Dino / Jay Arthur Del Rosario / Deogracias Garcia / Rhodylyn De Torres
Supreme Court holds that disability shall be determined by the assessment of the company-designated physician issued within 120/240 days
The seafarer was engaged as Oiler when he experienced back pains after doing maintenance work and lifting of a metal plate. He was repatriated and placed under the care of the company-designated physician who diagnosed him with chronic bilateral L5-S1 radiculopathies probably secondary to a lumbar canal stenosis. After a series of laboratory examinations and almost 5 months of treatment, the company-designated physician assessed the seafarer with a grade “11” disability due to slight rigidity or 1/3 loss of motion of lifting power of the trunk under the POEA Contract. The seafarer nevertheless continued his treatment on his own account and then eventually filed a claim for disability benefits against the company.
During the conciliation hearings before the Labor Arbiter, the parties agreed to appoint a third doctor for a final and binding assessment. However, the seafarer eventually backed out of this agreement and merely sought consult with another doctor who declared him permanently and totally disabled.
The Labor Arbiter considered the seafarer permanently and totally disabled as the final assessment was issued by the company-designated physician only after 149 days of treatment. The Labor Arbiter reasoned that seafarer’s condition is considered as permanent and total due to his inability to perform his customary work for more than 120 days. This was also the decision of the NLRC. On the other hand, the Court of Appeals while sustaining the award ruled that the seafarer is permanently and totally disabled because he was still under treatment after more than 240 days and there was no showing that he was engaged to work again.
When the case reached the Supreme Court, the award was modified and the seafarer was just considered to be suffering from a permanent partial disability.
Failure to follow the third doctor procedure
The Court once again stated that under the POEA Contract, a third doctor must be resorted to if there are conflicting opinions from the company-designated doctor and the seafarer’s personal doctor. The Court further reiterated that without the opinion of a third doctor, there is no valid challenge to the opinion of the company-designated physician and his medical pronouncement must be upheld.
In this case, the seafarer refused the appointment of a third doctor which is a clear disregard of the conflict resolution procedure set by the POEA Contract. For this reason, the findings of the company-designated physician that he is suffering from a permanent partial disability of grade “11” should be upheld.
The 120/240 days rule; disability grading issued by the company-designated physician upheld
The seafarer reasoned that he was no longer obliged to undergo a third doctor assessment because under contemplation of law, he was already considered as permanently and totally disabled as he was not declared fit to work within a period of 120 days/240 days.
The Court held that seafarer’s argument is flawed. Under the POEA Contract only those illnesses or injuries that are classified as grade “1” shall be constitute total and permanent disability. Thus, those from grade “2” to “14” are considered as partial permanent disability subject to the schedule of rates provided by the contract. The lapse of the 120 or 240 day period does not automatically entitle the seafarer to a total permanent disability. It is the company-designated physician who will certify him as either fit to work or classify his condition as either partial or total permanent disability within the said periods.
In fact, the POEA Contract itself provides that the disability should be based on the schedule provided therein and not on the duration of the seafarer’s treatment. It is only after the lapse of 240 days that the seafarer is still incapacitated to perform his usual duties and the company-designated physician has not made any assessment at all (whether the seafarer is fit to work or whether his permanent disability is partial or total) that the conclusive presumption of permanent total disability on the part of the seafarer arises.
Here, the seafarer was under the medical care of the company-designated physician and the Court determined that the initial 120 days period may be justifiably extended as further treatment was needed. Within the extended period of 240 days, the company-designated physician assessed the seafarer with a grade “11” disability. In the absence of a third doctor’s opinion, such assessment should be upheld.
Yialos Manning Services, Inc., Overseas Shipmanagement S.A., et. al vs. R. B., G.R. No. 227216, July 4, 2018, Second Division, Associate Justice Benjamin Caguioa, ponente (Attys. Joseph Rebano and Jonathan Vinarao of DelRosarioLaw handled for vessel interests)
Firm News
DelRosarioLaw Partner Catherine Mangahas attended the 18th General Assembly & 68th and 69th Council meetings of the Asian Patent Attorneys Association (APAA) which was held last 17-21 November 2018 at New Delhi, India. As a Member thereof, Catherine had the opportunity to exchange views and information with leading practitioners of intellectual property law and be abreast of recent legal developments in Asia on intellectual property protection.
The APAA is a non-governmental organization dedicated to promoting and enhancing intellectual property protection in the Asian region (including Australia and New Zealand).
DelRosarioLaw Senior Associate Jerome Pampolina served as resource speaker at the crew conference seminar of Foscon Shipmanagement, Inc. and Star Management Associates last 15 November 2018. Jerome discussed issues on pre-employment medical examination, work-relation of illnesses, 120/240 days rule, the Seafarers Protection Act as well as recent jurisprudence.
Our thanks to Foscon Shipmanagement, In. and Star Management Associates for their kind invitation and we will see you again in your future conferences.
DelRosarioLaw Managing Associate Pedrito Faytaren Jr. in coordination with Crew Benefit, Inc. gave a lecture on the POEA Contract, Amended Migrant Workers’ Act and Seafarer’s Protection Act as well as legal updates at the crew conference of Target Marine SA at City State Hotel on 6 December 2018 and Times Navigation, Inc. at New World Hotel Manila on 13 December 2018.
Our thanks to Crew Benefit, Inc., Target Marine SA and Times Navigation, Inc. for the kind invitation. We hope to see you again in your future conferences.
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
|
|
↧
↧
Supreme Court rules that POEA Contract applies even if the provisions of the CBA are not applicable
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 21 January 2019 (Issue 2019/01)
Holiday Notice: Our offices will be closed on 5 February 2019 (Chinese New Year). Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Supreme Court rules that POEA Contract applies even if the provisions of the CBA are not applicable
The seafarer was engaged as a laundryman by the company. During the course of his employment, the seafarer alleged that he slipped and hit his left shoulder on the door of a washing machine. He further alleged that he immediately reported his condition to the ship doctor and was given medication. However, despite the same, the seafarer continued to feel pain on his left shoulder.
When the ship had a stopover in Manila, the ship doctor accompanied the seafarer to a hospital for laboratory tests. When the results came out, it was suspected that the seafarer has a coronary artery disease. Thus, he was recommended for further examination and treatment. To determine the cause of his pain, the seafarer was placed under the care of the company-designated doctors and underwent a series of medical examinations and laboratory tests. The tests cleared him of serious heart ailments but showed that he was suffering from a superior labral tear on his shoulder.
To address the pain on his left shoulder, the seafarer underwent arthroscopic superior labral repair and thereafter proceeded with therapy about three months. Eventually, the company-designated physician assessed the seafarer with a grade “12” disability for the neck and grade “11” disability for the shoulder.
The seafarer then consulted his own doctors who all issued Medical Certificates stating that he is unfit to resume work as a seaman. Eventually, the seafarer filed a complaint for disability benefits and insisted that his condition was caused by an accident suffered while on board the ship which would make the collective bargaining agreement applicable (CBA for brevity). The company denied any liability under the CBA as seafarer’s condition did not arise from an accident. Moreover, the company argued that the seafarer did not properly dispute the findings of the company-designated physician.
The Labor Arbiter ruled in favor of the seafarer and awarded full disability benefits under the CBA in the amount of US$125,000 which was affirmed by the NLRC. On the other hand, the Court of Appeals dismissed the claim altogether citing the inapplicability of the CBA to the claim of the seafarer finding that the alleged “accident” was not sufficiently established by substantial evidence.
Upon reaching the Supreme Court, the seafarer was awarded disability benefits based on the POEA Contract equivalent to the disability gradings issued by the company-designated doctor.
CBA not applicable as fact of accident not established
The pertinent provision of the CBA states that “A Seafarer who suffers injury as a result of an accident from any cause whatsoever whilst in the employment of the Company, regardless of fault, including accidents occurring whilst traveling to or from the Ship 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 Collective Agreement”.
The Court denied the applicability of the CBA and held that the fact of accident was not sufficiently proven as: (1) there was neither a report on the ship's logbook nor on the Master's report regarding said incident; and (2) the factual findings of the Labor Arbiter, as adopted by the NLRC, on the fact of accident have no basis since the former merely drew a conclusion that an accident occurred just because a superior labral tear implies an abrupt impact on the shoulder which is merely suggestive of an accident.
POEA Contract is applicable
While the fact of accident was not established, this does not imply that seafarer is not entitled to disability benefits just because the CBA does not apply in his case. Aside from the CBA, the POEA Contract finds application in the claim. The Court explained that deemed incorporated in every seafarer's employment contract is a set of standard provisions determined and implemented by the POEA, called the "Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels," which are considered to be the minimum requirements acceptable to the government for the employment of Filipino seafarers on board foreign ocean-going vessels.
In other words, the POEA Contract and the CBA govern the employment relationship between the seafarer and the company. The two instruments are the law between them. They are bound by their terms and conditions, particularly in relation to this case, the mechanism prescribed to determine liability for a disability benefits claim.
The Court noted that the seafarer suffered a superior labral tear on his left shoulder. It is undisputed that said injury took place within the period of his employment, at the place where he reasonably may be and while he is fulfilling his duty. Said circumstances correspond to the definition of "arising out of and in the course of employment and as such, the seafarer’s injury is work-related which must be compensated in accordance with the provisions of the POEA Contract.
Third doctor rule; assessment of company-designated physician upheld
The Court noted that the company-designated physician issued a disability grade “11” for seafarer's shoulder and disability grade 12 for his neck. On the other hand, the seafarer’s physicians declared him unfit for sea duty. On this note, the POEA Contract states that should the seafarer's appointed doctor disagree with the assessment of the company-designated physician, a third doctor may be agreed upon by the employer and the seafarer and the latter's decision shall be final and binding on both parties.
Hence, it is imperative that in case of conflicting assessments, the seafarer must submit to a third doctor, who should be mutually agreed upon by him and his employer. This procedure must be strictly followed otherwise, if not availed of or followed strictly by the seafarer, the assessment of the company-designated physician stands. Considering that the seafarer failed to comply with the mentioned procedure, the assessment of the company-designated physician prevails.
Thus, the Court awarded disability benefits to the seafarer the amounts of US$7,465 for the grade “11” assessment and US$5,225 for the grade “12” assessment.
B. B. vs. Career Philippines Shipmanagement, Inc., Columbia Shipmanagement Ltd. et.al., G.R. No. 224127, August 15, 2018, First Division, Associate Justice Noel Tijam, ponente
MARINA Memorandum Circular No. MO-2019-01
The Maritime Industry Authority (MARINA) has recently issued Memorandum Circular No. MO-2019-01 regarding the Rules and Regulations in the Issuance of Seafarer’s Record Book (SRB) and Seafarer’s Identity Document (SID) in consonance with ILO Convention No. 185 and the 1978 International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW).
The SRB and SID will now replace the previous Seafarer’s Identity Record Book (SIRB).
A Seafarer's Identity Document (SID) refers to an International Identity Document under ILO Convention 185 (revised 2003) used to obtain proof of the bearer's eligibility for visa waiver; and to identify them as genuine seafarers who may be entitled to transit with their passport at ports and border crossings, and to shore leave without a visa. This has a validity of five (5) years.
On the other hand, a Seafarer's Record Book (SRB), refers to a document issued by MARINA to all Filipino seafarers and cadets/cadettes that serves as record of sea service of the holder onboard ships of 35GT and above for commercial vessel and 50GT and above for fishing vessel . This has a validity of ten (10) years.
The declared objectives of the Rules and Regulations are: (a) to promote national and international modern security for border control, immigration and verification of seafarer's identification; (b) to enhance the security features of the Filipino seafarers' Identification document and ensure its global interoperability and reliability; (c) minimizing the formalities, documentary requirements and procedures associated with the arrival, stay and departure of ships engaged in international voyages; (d) Ensure that the privileges of facilitated border crossing for shore leave, transit, transfer and repatriation are provided only to genuine seafarers; (e) to enhance existing system and streamline the processes and requirements in' the issuance of SRB.
The Rules and Regulations cover all Filipino seafarers, 18 years of age and engaged in any capacity onboard ships 35GT and above. Filipino cadet/cadettes below 18 years of age may also be issued SID and SRB for shipboard training purposes only.
However, seafarers who have been declared by a competent medical practitioner to be permanently disabled to board ships and who have been paid by the Insurance for such disability shall no longer be allowed to renew or be issued SRB and SID. ln case the SRB and SID are still valid at the time such declaration of permanent disability is made, the same shall be deemed automatically revoked.
The SRB and SID will also not be issued to those seafarers who are under the watchlist of the MARINA, unless, a Legal Clearance has been issued from the MARINA Legal Service.
The Rules and Regulations will be effective 15 days from publication in a newspaper of general circulation. (Published: Business Mirror, 10 January 2019)
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
|
|
↧
Supreme Court holds that disability grading should be upheld and not number of days seafarer is unable to work
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 19 February 2019 (Issue 2019/02)
Holiday Notice: Our offices will be closed on 25 February 2019 (People Power Revolution Anniversary). Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Supreme Court holds that disability grading should be upheld and not number of days seafarer is unable to work
The seafarer was employed by the company as an Environmental Operator on-board the vessel. Three months into his contract, the seafarer was brought to the ship's clinic for medical examination after experiencing dizziness, overfatigue, frequent urination and blurring of eyesight. He was found to have had elevated blood sugar and blood pressure. Eventually, he was medically repatriated and was referred by the company to their designated physicians.
After extensive treatment for 118 days, the company-designated physician issued a certification indicating that seafarer's condition was not work-related and that his final disability grading for hypertension and diabetes was grade 12.
The crew thereafter consulted his physician of choice who opined that he had high blood pressure and uncontrolled diabetes mellitus. The opinion further stated that the seafarer's condition was work-related owing to the pressure on the ship, which elevated his blood pressure and to unbalanced food aboard, which elevated his blood sugar. In conclusion, the opinion stated that the seafarer was permanently disabled to discharge his duties as a seafarer.
Given the contradicting medical opinions, the crew filed a claim for disability and sickness pay benefits with damages before the labor court.
The Labor Arbiter awarded disability benefits to the seafarer finding that the illnesses are work-related and that he is already [permanently and totally disabled.
Upon appeal to the NLRC, the award was modified and financial assistance was given based on the corresponding grade 12 disability assessment of the company-designated physician. The NLRC held that the seafarer failed to prove that his diabetes and hypertension were work-related.
The Court of Appeals on the other hand reinstated the award of the Labor Arbiter with a finding that the illnesses are work-related and that the seafarer is considered permanently and totally disabled as he was unable to return to work after 120 days.
With the Supreme Court, the award issued by the NLRC was sustained.
After extensive treatment for 118 days, the company-designated physician issued a certification indicating that seafarer's condition was not work-related and that his final disability grading for hypertension and diabetes was grade 12.
The crew thereafter consulted his physician of choice who opined that he had high blood pressure and uncontrolled diabetes mellitus. The opinion further stated that the seafarer's condition was work-related owing to the pressure on the ship, which elevated his blood pressure and to unbalanced food aboard, which elevated his blood sugar. In conclusion, the opinion stated that the seafarer was permanently disabled to discharge his duties as a seafarer.
Given the contradicting medical opinions, the crew filed a claim for disability and sickness pay benefits with damages before the labor court.
The Labor Arbiter awarded disability benefits to the seafarer finding that the illnesses are work-related and that he is already [permanently and totally disabled.
Upon appeal to the NLRC, the award was modified and financial assistance was given based on the corresponding grade 12 disability assessment of the company-designated physician. The NLRC held that the seafarer failed to prove that his diabetes and hypertension were work-related.
The Court of Appeals on the other hand reinstated the award of the Labor Arbiter with a finding that the illnesses are work-related and that the seafarer is considered permanently and totally disabled as he was unable to return to work after 120 days.
With the Supreme Court, the award issued by the NLRC was sustained.
Disability to be determined by grading issued by the company-designated doctor
In reversing the Court of Appeals, the Supreme Court held that while a seafarer is entitled to temporary total disability benefits during his treatment period, it does not follow that he should likewise be entitled to permanent total disability benefits when his disability was assessed by the company-designated physician after his treatment. He may be recognized to have permanent disability because of the period he was out of work and could not work, but the extent of his disability (whether total or partial) is determined, not by the number of days that he could not work, but by the disability grading the doctor recognizes based on his resulting incapacity to work and earn wages.
It is the doctor’s findings that should prevail as he or she is equipped with the proper discernment, knowledge experience and expertise on what constitutes total or partial disability. The physician’s declaration serves as the basis for the degree of disability that can range anywhere from Grade 1 to Grade 14. Notably, this is a serious consideration that cannot be determined by simply counting the number of treatment lapsed days.
It is the doctor’s findings that should prevail as he or she is equipped with the proper discernment, knowledge experience and expertise on what constitutes total or partial disability. The physician’s declaration serves as the basis for the degree of disability that can range anywhere from Grade 1 to Grade 14. Notably, this is a serious consideration that cannot be determined by simply counting the number of treatment lapsed days.
The medical assessment of the company-designated physician was not validly challenged
The Court noted that the company-designated physician assessed the seafarer with a grade 12 partial disability. On the other hand, the personal doctor of the seafarer assessed him to be permanently and totally disabled.
In comparing the different assessments, the Court noted that the company-designated physician conducted numerous and extensive medical consultations on the seafarer. In contrast the personal doctor of the seafarer issued a lone medical certificate which makes the same of doubtful credibility and reliability.
Moreover, the seafarer never signified his intention to resolve the disagreement in the conflicting medical opinions to a third doctor in accordance with the procedure laid down by the POEA Contract. In the absence of such compliance, the final assessment of the company-designated physician must be upheld.
In comparing the different assessments, the Court noted that the company-designated physician conducted numerous and extensive medical consultations on the seafarer. In contrast the personal doctor of the seafarer issued a lone medical certificate which makes the same of doubtful credibility and reliability.
Moreover, the seafarer never signified his intention to resolve the disagreement in the conflicting medical opinions to a third doctor in accordance with the procedure laid down by the POEA Contract. In the absence of such compliance, the final assessment of the company-designated physician must be upheld.
Hypertension and diabetes does not in itself result into a permanent and total disability
The Court held that merely having hypertension does not warrant an award of disability benefits. While Essential Hypertension is listed as an occupational disease under the POEA Contract, its mere work-relation and compliance with the requirements of the contract will not make it automatically compensable. The POEA Contract requires an element of gravity. It speaks of essential hypertension only as an overture to the impairment of function of body organs like kidneys, heart, eyes and brain. This impairment must then be of such severity as to be resulting in permanent disability. In this case, the company-designated physician opined that seafarer’s hypertension is not essential or primary, hence it was not severe for which reason, only a partial disability was given.
On the other hand, diabetes is not among the listed occupational disease in the POEA Contract. The Court held that such condition is a metabolic and a familial disease to which one is pre-disposed by reason of heredity, obesity or old age. It does not indicate work-relatedness and by its nature, is more the result of poor lifestyle choices and health habits for which disability benefits are improper. The company-designated physician likewise opined that seafarer’s diabetes is not severe and in fact, his examinations showed good results and was merely advised to take maintenance medications.
Concluding, the Court held that the crew's conditions do not in itself warrant an award of permanent and total disability benefits. The POEA Contract even recognizes that a seafarer can still be employed even if he has hypertension and/or diabetes provided that he shows compliance with the prescribed maintenance medications and doctor-recommended lifestyle changes. Thus, the Grade 12 disability benefits was sustained by the Court.
C.F. Sharp Crew Management, Inc. et. al. and/or Norwegian Cruise Line Ltd. vs. J. S., G.R. No. 213731, August 1, 2018, Third Division, Associate Justice Alexander Gesmundo, ponente (our Attys. Charles Dela Cruz and Jamella Joya handled for vessel interests)
On the other hand, diabetes is not among the listed occupational disease in the POEA Contract. The Court held that such condition is a metabolic and a familial disease to which one is pre-disposed by reason of heredity, obesity or old age. It does not indicate work-relatedness and by its nature, is more the result of poor lifestyle choices and health habits for which disability benefits are improper. The company-designated physician likewise opined that seafarer’s diabetes is not severe and in fact, his examinations showed good results and was merely advised to take maintenance medications.
Concluding, the Court held that the crew's conditions do not in itself warrant an award of permanent and total disability benefits. The POEA Contract even recognizes that a seafarer can still be employed even if he has hypertension and/or diabetes provided that he shows compliance with the prescribed maintenance medications and doctor-recommended lifestyle changes. Thus, the Grade 12 disability benefits was sustained by the Court.
C.F. Sharp Crew Management, Inc. et. al. and/or Norwegian Cruise Line Ltd. vs. J. S., G.R. No. 213731, August 1, 2018, Third Division, Associate Justice Alexander Gesmundo, ponente (our Attys. Charles Dela Cruz and Jamella Joya handled for vessel interests)
Firm News
Del Rosario Partner Denise Cabanos was inducted as President of the Maritime Law Association of the Philippines (MARLAW) 2018-2019 in Hong Kong last 19 January 2019 before the Honorable Consul General Antonio A. Morales. Denise is continuing the firm’s rich heritage in MARLAW as the fifth Del Rosario Law Partner to become the MARLAW President of MARLAW since it was established in 1982.
Managing Associates Pedrito and Gina Guinto were appointed as Vice President for Ways and Means and Corporate Secretary respectively of MARLAW. Senior Associates, Aldrich Del Rosario, Richard Sanchez and Julius Yano were also appointed as Vice Presidents for Sports and Recreational Activities, Social Media and Special Projects, respectively.
Our thanks to the Philippine Consulate General in Hong Kong for hosting the event and to Honorable Consul General Morales for being the inducting officer.
More power to MARLAW and congratulations!
Managing Associates Pedrito and Gina Guinto were appointed as Vice President for Ways and Means and Corporate Secretary respectively of MARLAW. Senior Associates, Aldrich Del Rosario, Richard Sanchez and Julius Yano were also appointed as Vice Presidents for Sports and Recreational Activities, Social Media and Special Projects, respectively.
Our thanks to the Philippine Consulate General in Hong Kong for hosting the event and to Honorable Consul General Morales for being the inducting officer.
More power to MARLAW and congratulations!
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
|
|
↧
Supreme Court denies claim for death benefits as seafarer finished and died after his contract; acute myelogenous leukemia not work-related
Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 19 March 2019 (Issue 2019/03)
Holiday Notice: Our offices will be closed on 9 April 2019 (The Day of Valor). Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Supreme Court denies claim for death benefits as seafarer finished and died after his contract; acute myelogenous leukemia not work-related
The seafarer was engaged as Second Engineer on-board the vessel after having passed his pre-employment medical examination. It was alleged that during his employment, the seafarer would experience dizziness and nausea, redness of the eyes, purple patches on his skin, bleeding gums, prolonged nosebleed and severe urinary and gastrointestinal hemorrhage which was known to the Master. Eventually, the seafarer was disembarked due to finished contract and proceeded to take his vacation.
The family of the seafarer was then surprised with his bleeding which prompted a consult with the hospital where he was prescribed medicines. Further consultation and examination revealed he was suffering from acute myelogenous leukemia. The seafarer died two months after he was repatriated.
The heirs of the seafarer then filed a claim for death benefits against the company. The Labor Arbiter granted the claim but was reversed by the NLRC on appeal. In the Court of Appeals, the claim was still denied as there was failure on the part of the heirs to prove work-relation of the death and that the seafarer did not undergo the mandatory post-employment medical examination with the company-designated doctor within three days from his arrival.
When the case reached the Supreme Court, the denial of the claim was affirmed.
The seafarer did not comply with the mandatory post-employment medical examination
The Court found that the seafarer did not present himself to the company-designated doctor within three days from his arrival. While this rule is not absolute, the heirs failed to show any reason why the seafarer did not report to the company-designated physician within three days from repatriation. If it was true, as alleged, that the seafarer was already experiencing bleeding gums, prolonged nosebleed and severe urinary and gastrointestinal hemorrhage even before his repatriation, then it was imperative for him to report to his employer upon his arrival so that he can be checked by the company-designated physician.
To ignore this rule would set a precedent with negative repercussions because it would open the floodgates to a limitless number of seafarers claiming disability benefits. It would certainly be unfair to the employer who would have difficulty determining the cause of claimant’s illness considering the passage of time. In such a case, the employers would have no protection against unrelated disability claims.
The seafarer’s death is not work-related and did not occur during the term of the contract
The Court noted that aside from allegations that the seafarer fell ill during employment, no other evidence was presented by the heirs to prove this. There was no complaint, medical report or such other relevant document presented regarding the illness of the seafarer contracted during the voyage. Without any record of illness during his voyage, it is difficult to state that the seafarer acquired or developed his acute myelogenous leukemia during the term of his employment.
Further, the death of the seafarer occurred two months after the expiration of his contract thus there was a failure to comply with the requirement that the death should have occurred during the term of the contract. The only exception to this rule is when the death occur after the medical repatriation of the employee which is absent in this case because the seafarer was repatriated because of the end of his contract.
A. M. (In behalf of the late J. M.) vs. Status Maritime Corporation, Naftotrade Shipping and Commercial S.A. et. al., G.R. No. 227523, August 29, 2018, Second Division, Associate Justice Alfredo Benjamin Caguioa, ponente (Attys. Denise Cabanos and Richard Sanchez of DelRosarioLaw handled for vessel interests)
Firm News
DelRosarioLaw Senior Partner Joseph Manolo R. Rebano was a speaker at the crew conference of Anglo-Eastern Crew Management last 7 March 2019 entitled “It’s OUR Ship” held at The New World Hotel, Makati City. He spoke on “The P&I Perspective”. Guest of Honors were VADM Narciso A. Vingson Jr. (OIC-MARINA) and Atty. Bernard P. Olalia (POEA Administrator).
Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment
“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018
“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018
“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018
|
|
↧