Philippine Shipping Update – Manning Industry

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

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

In this issue:

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

Firm News

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

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

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

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

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

CBA not applicable as no accident

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

Claimant must prove work-relation of the illness

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

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

Crew was declared fit to work within 240 days

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

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

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

Findings of the company-designated doctor upheld

Based on jurisprudence, the findings of the company-designated physician prevail in cases where the seafarer did not observe the third-doctor referral provision in the POEA Standard Employment Contract. However, if the findings of the company-designated physician are clearly biased in favor of the employer, then courts may give greater weight to the findings of the seafarer’s personal physician. Clear bias on the part of the company-designated physician may be shown if there is no scientific relation between the diagnosis and the symptoms felt by the seafarer, or if the final assessment of the company-designated physician is not supported by the medical records of the seafarer.

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

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

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

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

Firm News

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

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

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

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

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