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Philippine Shipping Updates – Manning Industry [Download]
By: Ruben Del Rosario, Managing Director, Del Rosario Pandiphil Inc., August 8, 2007
This issue contains the following:
Supreme Court rules that NLRC should consider reduction of bonds on meritorious grounds
Advice on claimants or their counsel now contacting Club or Owners direct
Arbitrators upholds findings of company physician; cites POEA contract
“Fit to work” finding on gastritis upheld by Court of Appeals
Illness due to natural process of aging held not compensable by Court of Appeals
NLRC Commission adds a fourth division in Luzon
Supreme Court rules that NLRC should consider reduction of bonds on meritorious grounds
The Supreme Court has issued a news flash on August 6, 2007 as follows:
“In appeals of labor cases involving monetary awards to employees, the National Labor Relations Commission (NLRC) should consider employers’ motion to reduce the appeal bond and receive evidence before peremptorily dismissing the employers’ appeal as the NLRC New Rules allow the reduction of the appeal bond.”
The Court based its advisory on its ruling in Ronaldo Nicol v. Footjoy Industrial Corp. where the NLRC denied reduction of the appeal bond without receiving evidence. The Court concluded that a reduction of the bond is warranted when a meritorious ground is shown to justify it, when the appellant complied with the requirements of posting a bond, even it partial, and when circumstances show the employer’s willingness to ensure the satisfaction of its workers’ valid claims.
With regard to seafarers’ cases, an appeal based on meritorious grounds in addition to a bond of some 30% to 50% may be enough to perfect an appeal. The only issue becomes whether the vessel’s “meritorious ground” is seen by the NLRC Commission as also meritorious.
We will update you on how this issue develops. The issue may impact on use of the CLOG. If CLOG is eventually disallowed as collateral, we may be able to post an appeal bond worth only about 30% to 50% of the judgment amount. The issue may also assist in strengthening the bargaining power of respondents during the execution process as the appeal bond is less than the judgment amount.
Advice on claimants or their counsel now contacting Clubs or owners direct
With the ease of emails, some claimants or their counsel are now emailing the Clubs or the owners direct. While this tactic is not new, it is now again becoming prevalent. Our advice is not to reply as this will just encourage a dialogue with the sender. Clients’ who have tried to engage the claimants in dialogue have found that the communication increases and further, other claims begin to follow the same strategy. Please refer the email immediately to us and we will do the required reply.
Arbitrators upholds findings of company physician; cites POEA contract
Complainant (Seafarer) was hired as Ordinary Seaman under the New POEA Standard Employment Contract. He sustained an injury to his hip area when his hands were caught in a rope causing him to lose balance. He was repatriated and was referred to the company designated physician who suggested a disability grading of Grade 11 (slight rigidity or 1/3 loss of motion or lifting power of the trunk). Complainant consulted private physicians and was rated a disability grading of Grade 6 but due to the severity of his illness he is qualified for disability Grade 1 and was declared unfit for any sea duties in any capacity. The panel of voluntary arbitrators declared that complainant is entitled to a disability benefit commensurate to Grade 11 as declared by the company designated physician. The office held that under Section 20, B2 of the POEA Standard Employment Contract, it is the company designated physician who must proclaim that the seaman suffered permanent disability, whether total or partial, due to injury or illness, during the term of the contract. Thus, the office ruled that complainant is only entitled to an impediment Grade Eleven (11) equivalent to impediment percentage or Percentage Degree of Disability of 14.93% amounting to US8,958.00.
Ace Navigation Company vs. Rodolfo Nene, AS-0025-NCMB-NCR-14-01-07-07, July 16, 2007, Panel of Arbitrators, Hon. Froilan Bacungan, Hon. Gregorio Sialsa and Hon. Leonardo Saulog (Attys. Agnes Lucero and Herbert Tria of Del Rosario & Del Rosario handled for vessel interests.)
Court of Appeals upholds “fit to work” finding; holds gastritis is treatable
Petitioner (Seafarer) was hired as Messman under the New POEA Standard Employment Contract. He found blood in his stool. He was hospitalized in a foreign hospital. He was repatriated and was referred to the company designated physician for further medical treatment. The company designated physician was of the impression that complainant was suffering from gastric ulcer and esophagitis and that no disability grade is involved as gastritis can be treated with medications. Petitioner was then declared fit to work. Petitioner sought medical attention of a private doctor and was given disability Grade 7 (Moderate Residual Disorder of Intra-abdominal organ). Petitioner filed a complaint for disability benefits, damages and attorney’s fees. The Labor Arbiter dismissed the complaint for lack of merit. NLRC partially granted petitioner’s appeal granting petitioner’s medical reimbursement plus attorney’s fees. The Court of Appeals gave probative weight to the findings of the company designated physician. Moreover, the Court holds that petitioner is not suffering from any disability which could render him unfit to work; hence; the court found no factual and legal basis to grant complainant’s disability benefits. Furthermore, the court opined that there is no Grade 1 disability which corresponds to petitioner’s physical condition as he was declared fit to work. Thus, a person who is fit to work is not entitled to total and permanent disability benefits. Petition was dismissed.
Joseph Gonzales vs NLRC, et. al., CA-GR-SP 96409, July 3, 2007, Associate Justice Bienvenido Reyes, Ponente (Attys. Dennis Acaban and Charles de la Cruz of Del Rosario & Del Rosario handled for vessel interests).
Court of Appeals rules diverticulosis is due to natural process of aging, thus, not work-related
Petitioner (Seafarer) was hired as Master under the old POEA Standard Employment Contract. He experienced pain in his stomach and was found to have diverticulosis or diverticular disease. He was repatriated for further medical treatment. Petitioner was referred to the company designated physician who confirmed that he was indeed suffering from a diverticular disease. The company designated physician commented that complainant’s illness is not work-related and that the same could not have been contracted during his employment with the vessel. Said disease may be due to the natural process of aging and that there is no known risk factor that may have caused or contributed to petitioner’s illness on-board the vessel. Petitioner then filed a complaint for permanent total disability benefits. The Labor Arbiter dismissed the complaint for lack of merit. The arbiter ruled that he cannot find any relation between the complainant’s illness and his work on-board the vessel. As borne out by the records, petitioner’s duties and functions are relegated to mere supervision of the vessel and its crew. He is not exposed to any risk, in relation to his work, which would increase the chances of acquiring his disease. Furthermore, petitioner’s alleged illness cannot have been contracted during his less than two (2) months stayed on board the vessel. NLRC affirmed the decision of the Labor Arbiter. The Court of Appeals ruled that under Section 2 (b) of the 2000 POEA-SEC, petitioner’s illness is not an occupational disease. Moreover, petitioner failed to prove that his illness was work-related. Thus, having failed to do so, he is not entitled to disability benefits. Petition was denied.
Paul Go vs. NLRC, et. al., CA-GR-SP-93068, May 29, 2007, Associate Justice Arturo Tayag (Attys. Florencio Aquino and Herbert Tria of Del Rosario & Del Rosario handled for vessel interests).
NLRC Commission adds a fourth division in Luzon
The NLRC has added another division to its five divisions. Two commissioners have been appointed to this sixth division, Hon. Isabel Panganiban Ortiguerra and Hon. Benedicto R. Palacol. They took their oath of office last July 30. The NLRC has been allowed to add four more divisions but budget constraints have so far restricted this to one. It is hope that more divisions will speed up the release of decisions
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mail@delrosario-pandiphil.com
Telephone: +63 2 5317 7888, +63 2 8810 1791 Fax: 63 2 5317 7890 24/7
Mobile: 63 917 830 8384