Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  6 October 2017 (Issue 2017/17)

 Supreme Court denies seafarer’s claim due to signed Certificate of Fitness to Work

 Seafarer was engaged as Assistant Plumber.  During employment, seafarer experienced back pain. The ship doctor diagnosed him to be suffering from mechanical back pains and prescribed him with medicines.  However, due to the worsening of his back pains, he was medically repatriated.  Upon repatriation, seafarer was immediately referred to the company-designated physicians.  Tests revealed that he was suffering from Cervical Spondylosis with Thickening of the Posterior Longitudinal Ligament from C2-3 to C5-6; Mild Disc Bulging from C3-4 to T2-E; and Superimposed Left Paracentral Disc Protrusion at C5-6.  Seafarer underwent Anterior Disectomy, Spinal fusion C5-C6 Ciliac Bone Graft, and Anterior Plating.   After his discharge from the hospital, seafarer continuously reported to the company-designated physician for medical treatment and evaluation. Thereafter, he underwent physical therapy.
 
After treatment, seafarer was declared fit to resume sea duties by the company-designated physician and the specialists.  Seafarer thereafter signed a Certificate of Fitness to Work, releasing the company from all liabilities.
 
Two months after, the seafarer consulted another orthopedic surgeon who certified his unfitness to work as a seaman and assessing him with a grade “3” disability.  This served as basis for the seaman in claiming disability benefits against the company based on an alleged collective bargaining agreement (CBA).
 
The Labor Arbiter denied the claim and upheld the findings of the company-designated physician.  It was also held that there was no proof shown that the alleged CBA presented covers the parties.  Moreover, and assuming that there is a CBA in place, the seafarer is not entitled to disability benefits therein as the same is only provided if the disability was a result of an injury arising from an accident.  
 
On appeal, the NLRC awarded the seafarer full disability benefits under the CBA relying on the medical opinion of seafarer’s personal doctor.  The NLRC held that the CBA is applicable as the seafarer’s spinal column “cracked” while lifting heavy pipes.  The Court of Appeals affirmed the award of disability benefits to the seafarer.
 
Upon petition with the Supreme Court, the claim of the seafarer was dismissed for lack of merit.
 
No proof was presented to show that the employment is covered by a CBA
 
The Court held that the seafarer failed to adequately prove that he was entitled to the benefits of an alleged CBA he had presented.  The CBA presented bore no specific details as regards the parties covered, effectivity or duration thereof or even the signature of the contracting parties.  There was also no showing that seafarer’s employment was covered by the supposed CBA or that the company entered into a CBA with any union in which the seafarer was a member.  Moreover, there was likewise no evidence that an accident occurred that caused seafarer’s injury.  There was no report in the logbook that an accident happened which resulted in seafarer’s back pain.
 
It is basic that seafarer has the duty to prove his own assertions. And his failure to discharge the burden of proving that he was covered by the CBA militates against his entitlement to any of its benefits. As such, the NLRC and the Court of Appeals had no basis in awarding the seafarer disability benefits under the supposed CBA.
 
The findings of the company-designated physicians prevails`
 
It is clearly provided in the POEA-SEC that in order to claim disability benefits, it is the company-designated physician who must proclaim that the seafarer suffered a permanent disability, whether total or partial, due to either injury or illness, during the term of his employment. If the doctor appointed by the seafarer makes a finding contrary to that of the assessment of the company-designated physician, a third doctor may be agreed jointly between the employer and seafarer whose assessment shall be binding on both of them. While a seafarer has the right to seek a second and even a third opinion, the final determination of whose assessment  must prevail must be done in accordance with this agreed procedure. Failure to observe this will make the company-designated physician's assessment final and binding.
 
Here, the seafarer did not refer the conflicting assessments of the company-designated physicians and his chosen doctor to a third doctor in accordance with the mandated procedure. In fine, the company-designated physicians’ assessment was not effectively disputed; hence, the Court has no option but to declare the fit to work declaration as final and binding.
 
In any event, the Court found the company-designated physicians’ assessment to be credible considering their close monitoring and extensive treatment of seafarer's condition. The fit to work assessment was supported by the findings of the orthopedic surgeon and physiatrist who both opined, after making a thorough evaluation of seafarer's condition, that seafarer was already physically fit to resume work without any restrictions. The extensive medical attention and treatment given to the seafarer for more than two months were clearly supported by medical reports.
 
On the other hand, the chosen doctor of the seafarer rendered a medical opinion after a singular examination of the seafarer.  His pronouncement of seafarer's unfitness to resume sea duties and partial disability impediment of Grade 3 was unsupported by adequate explanation as to how his recommendations were arrived at.
 
Besides, the company-designated physicians’ fit to work assessment was supported by the Certificate of Fitness to Work signed by the seafarer. It was emphasized that seafarer immediately caused the execution of this waiver or release in favor of the company instead of disputing the fit to work declaration. Not all waivers and quitclaims are invalid as against public policy.  Absent any evidence that any of the vices of consent is present, this document executed by the seafarer constitutes a binding agreement and a valid waiver in favor of the company.
 
North Sea Marine Services Corporation etal, and/or Carnival Cruise Lines vs. Santiago S. Enriquez, G.R. No. 201806, August 14, 2017, First Division, Associate Justice Mariano Del Castillo, ponente (Attys. Herbert Tria and Maricris Ferrer of Del Rosario & Del Rosario handled for vessels interests)

 Firm News
 
On 19 September 2017, Del Rosario & Del Rosario sponsored a seminar on the Data Privacy Act which was held at the DelRosarioLaw Centre.  The guest speaker was the National Privacy Commission’s Chairman and Commissioner, Mr. Raymund Liboro.  Commissioner Liboro provided a background and orientation on the relatively new law.  Aside from providing practical insights, he likewise urged the manning industry to be among the first to formulate a sectoral code of conduct on data privacy together with the pertinent government regulators.
 
On a related note, DelRosarioLaw Partner Charles Dela Cruz was a speaker at the Klaveness Compliance Seminar last 19 September 2017 which was held at Five ECom, Mall of Asia Complex, Pasay City.  He lectured on the Data Privacy Act and its Implementing Rules and Regulations  
 
DelRosarioLaw Partners Charles Dela Cruz and Herbert Tria were joint speakers at the Magsaysay Shipping and Logistics-Fairmont Marine Insurance Seminar held on 8 September 2017 at the Robert Hall, Times Plaza Building, Manila.  Their topic was “MLC Certificate on Financial Security: Improving the plight of Filipino Seafarers On-Board the Vessel”.
 
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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