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
 
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