Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  August 23, 2017 (Issue 2017/14)

Supreme Court applies Department of Health Administrative Order 2007-0025 which recommends against certifying as fit-to-work seafarers with more than two maintenance medications for chronic heart problems; seafarer awarded total disability benefits

While working on-board the vessel, the seafarer experienced chest pains with palpitations and shortness of breath. He was taken to a shore hospital and was diagnosed to have an elevated blood pressure, prescribed anti-hypertensive medicines, and discharged thereafter. He was also recommended to be repatriated for further medical evaluation. Upon repatriation, the seafarer was referred by the company to their designated clinic.  Seafarer was found to be suffering from "Uncontrolled Hypertension; Unstable Angina; To Consider Coronary Artery Disease [CAD]; Dyslipidemia".   He was then prescribed with maintenance medicines totaling to five.   After further treatment, the company-designated physician initially declared the seafarer fit to work.  Unconvinced of the company-designated doctor’s findings, seafarer consulted his own doctor who declared that he cannot return to his employment due to the latter's on and off chest pains, "easy fatigability" and continuous intake of five maintenance medicines.  The seafarer then demanded payment of full benefits but was advised by the company that he was only assessed with a grade “7” disability by the company-designated doctor.
 
On the basis of the certification from his chosen doctor, the seafarer filed a claim before the NLRC for permanent total disability compensation.  The Labor Arbiter and the NLRC both awarded the seafarer full disability compensation on the ground that the medical condition of the seafarer has rendered him unable to work.
 
On the other hand, the Court of Appeals upheld the assessment of the company-designated doctor as the third doctor procedure was not followed.  As such, the award was limited to US$20,900 which was the equivalent of the grade “7” disability issued.
 
Upon reaching the Supreme Court, the decisions of the Labor Arbiter and the NLRC were reinstated.  Seafarer was awarded full disability compensation.
 
Partial disability assessment of company doctor was given beyond 120 days; thus said assessment must be considered total and permanent disability as no justification given as to why the period should be extended to 240 days
 
The Court noted that the seafarer was initially declared fit to work by the company-designated doctor.  This was questioned by the seafarer when he sought consultation with his chosen doctor who declared him unfit to resume sea duties.  When the seafarer obtained said medical report, more than 120 days already lapsed.  Upon presentation by the seafarer of the findings of his chosen doctor, this was the only time that the company presented to the seafarer the fact that he was assessed with a grade “7” disability.  The Court assumed that, in the absence of a specific date mentioned in the medical report, the grade “7” assessment was issued after the lapse of 120 days.
 
In legal contemplation, such partial disability was by then already deemed permanent as the assessment was issued after 120 days considering that there was no justification as to why the period should be extended to 240 days. As a result thereof, the issue of non-referral to a third doctor is rendered inconsequential.
 
Department of Health Administrative Order No. 2007-0025
 
The Court noted too that Department of Health (DOH) Administrative Order (A.O.) No. 2007-0025 recommends non-issuance of fit-to-work certifications to seafarers "with acute or chronic cardiovascular condition limiting physical activity, requiring more than two (2) maintenance oral medicines and close monitoring, or causing significant disability," specifically those (1) suffering from CAD, (2) has undergone Coronary Angioplasty within six months, with history of Uncontrolled Diabetes Mellitus, Hypertension and Dyslipidemia, and (3) Hypertension requiring three or more drugs, among others.   The medical condition of the seafarer falls under the above guidelines of the DOH, as he was prescribed with five maintenance medications.
 
Constancio Balatero vs. Senator Crewing (Manila) Inc., Aquanaut Shipmanagement Ltd., etal., MV MSC Flaminia; Senator Crewing (Manila) Inc., Aquanaut Shipmanagement Ltd., etal., vs. Constancio Balatero, G.R. Nos. 224532 and 224565, June 21, 2017, Third Division, Associate Justice Bienvenido Reyes (Attys. Joseph Rebano and David Valencia of Del Rosario & Del Rosario handled for vessels interests)
 

Deadline for mandatory increase in paid up capital (first tranche) of Philippine manning company is 4 September 2017
 
Pursuant to POEA Memo-Circular No. 03 Series of 2017, all manning agencies are required to increase their paid up capital to Php 5,000,000 at the rate of at least Php 750,000 every year. The first tranche is due next month, 4 September 2017. Aside from additional capital infusion, compliance can also be done through the issuance of a stock dividend if there is sufficient unrestricted retained earnings. If the capital stock is already fully subscribed, an amendment of the Articles of Incorporation would be necessary. All manning agencies already compliant with the required capitalization are required to submit a Certificate of Paid Up Capital from the POEA within the deadline. Failure to timely comply would expose the manning agency to administrative penalties imposed by the POEA.
 
 Firm News

Del Rosario & Del Rosario Law offices welcome the addition of Meighan E. Sembrano as one of its Junior Associates.  Meg is a 2011 Bachelor of Arts, Mass Communication graduate of Ateneo de Davao University and a 2016 Bachelor of Laws graduate of San Beda College - Alabang.
 
All the best and welcome again to the firm!

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
 
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