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Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 17 December 2018 (Issue 2018/16)
Holiday Notice: In view of the Christmas holidays, our offices will be closed on 24-25 December 2018, 31 December 2018 and 1 January 2019. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
Season’s Greetings
Dear clients and friends,
Christmas is the season we thank you, our clients and friends, for all the support given to us during the year. All 98 of us truly thank you and we do hope we have given you the service you deserve.
As we embark on our 42st year, we deeply appreciate all the kind words you have given us and embrace the criticisms as it does keep us working to strive better.
Del Rosario continues its CSR programs. This year we donated four houses to poor families in Bohol thru the Balay sa Kabos Foundation Inc. We continue our assistance to the Sacred Heart Chapel at West Crame, a chapel that serves our men in uniform; the Church of the Poor Apostolate of the St. James the Great Parish, an organization that helps the 100 poorest parishes in the Philippines and the Tuloy Foundation for Street Children, which provides a home and education to hundreds of orphaned and abandoned children.
We wish all of you and your family the best of the season and may the coming year 2019 bless us all with good health, happiness and prosperity.
As always, may we ask that you say a short prayer for the countless Filipino seafarers who are unable to spend their Christmas season with their families. If you see any Filipino seafarer this Christmas season, greet them “Maligayang Pasko” from all of us here in the Philippines.
From all of us at Del Rosario,
MALIGAYANG PASKO AT MANIGONG BAGONG TAON
MERRY CHRISTMAS AND A HAPPY NEW YEAR
Ruben Del Rosario / Arturo Del Rosario
Charles Jay Dela Cruz / Joseph Rebano / Herbert Tria
Denise Cabanos / Florencio Aquino / Catherine Mangahas-Soliven / Pamela Coseip-Abarico / Saben Loyola
Veronica Del Rosario-Aguinaldo / Josie Dino / Jay Arthur Del Rosario / Deogracias Garcia / Rhodylyn De Torres
Supreme Court holds that disability shall be determined by the assessment of the company-designated physician issued within 120/240 days
The seafarer was engaged as Oiler when he experienced back pains after doing maintenance work and lifting of a metal plate. He was repatriated and placed under the care of the company-designated physician who diagnosed him with chronic bilateral L5-S1 radiculopathies probably secondary to a lumbar canal stenosis. After a series of laboratory examinations and almost 5 months of treatment, the company-designated physician assessed the seafarer with a grade “11” disability due to slight rigidity or 1/3 loss of motion of lifting power of the trunk under the POEA Contract. The seafarer nevertheless continued his treatment on his own account and then eventually filed a claim for disability benefits against the company.
During the conciliation hearings before the Labor Arbiter, the parties agreed to appoint a third doctor for a final and binding assessment. However, the seafarer eventually backed out of this agreement and merely sought consult with another doctor who declared him permanently and totally disabled.
The Labor Arbiter considered the seafarer permanently and totally disabled as the final assessment was issued by the company-designated physician only after 149 days of treatment. The Labor Arbiter reasoned that seafarer’s condition is considered as permanent and total due to his inability to perform his customary work for more than 120 days. This was also the decision of the NLRC. On the other hand, the Court of Appeals while sustaining the award ruled that the seafarer is permanently and totally disabled because he was still under treatment after more than 240 days and there was no showing that he was engaged to work again.
When the case reached the Supreme Court, the award was modified and the seafarer was just considered to be suffering from a permanent partial disability.
Failure to follow the third doctor procedure
The Court once again stated that under the POEA Contract, a third doctor must be resorted to if there are conflicting opinions from the company-designated doctor and the seafarer’s personal doctor. The Court further reiterated that without the opinion of a third doctor, there is no valid challenge to the opinion of the company-designated physician and his medical pronouncement must be upheld.
In this case, the seafarer refused the appointment of a third doctor which is a clear disregard of the conflict resolution procedure set by the POEA Contract. For this reason, the findings of the company-designated physician that he is suffering from a permanent partial disability of grade “11” should be upheld.
The 120/240 days rule; disability grading issued by the company-designated physician upheld
The seafarer reasoned that he was no longer obliged to undergo a third doctor assessment because under contemplation of law, he was already considered as permanently and totally disabled as he was not declared fit to work within a period of 120 days/240 days.
The Court held that seafarer’s argument is flawed. Under the POEA Contract only those illnesses or injuries that are classified as grade “1” shall be constitute total and permanent disability. Thus, those from grade “2” to “14” are considered as partial permanent disability subject to the schedule of rates provided by the contract. The lapse of the 120 or 240 day period does not automatically entitle the seafarer to a total permanent disability. It is the company-designated physician who will certify him as either fit to work or classify his condition as either partial or total permanent disability within the said periods.
In fact, the POEA Contract itself provides that the disability should be based on the schedule provided therein and not on the duration of the seafarer’s treatment. It is only after the lapse of 240 days that the seafarer is still incapacitated to perform his usual duties and the company-designated physician has not made any assessment at all (whether the seafarer is fit to work or whether his permanent disability is partial or total) that the conclusive presumption of permanent total disability on the part of the seafarer arises.
Here, the seafarer was under the medical care of the company-designated physician and the Court determined that the initial 120 days period may be justifiably extended as further treatment was needed. Within the extended period of 240 days, the company-designated physician assessed the seafarer with a grade “11” disability. In the absence of a third doctor’s opinion, such assessment should be upheld.
Yialos Manning Services, Inc., Overseas Shipmanagement S.A., et. al vs. R. B., G.R. No. 227216, July 4, 2018, Second Division, Associate Justice Benjamin Caguioa, ponente (Attys. Joseph Rebano and Jonathan Vinarao of DelRosarioLaw handled for vessel interests)
Firm News
DelRosarioLaw Partner Catherine Mangahas attended the 18th General Assembly & 68th and 69th Council meetings of the Asian Patent Attorneys Association (APAA) which was held last 17-21 November 2018 at New Delhi, India. As a Member thereof, Catherine had the opportunity to exchange views and information with leading practitioners of intellectual property law and be abreast of recent legal developments in Asia on intellectual property protection.
The APAA is a non-governmental organization dedicated to promoting and enhancing intellectual property protection in the Asian region (including Australia and New Zealand).
DelRosarioLaw Senior Associate Jerome Pampolina served as resource speaker at the crew conference seminar of Foscon Shipmanagement, Inc. and Star Management Associates last 15 November 2018. Jerome discussed issues on pre-employment medical examination, work-relation of illnesses, 120/240 days rule, the Seafarers Protection Act as well as recent jurisprudence.
Our thanks to Foscon Shipmanagement, In. and Star Management Associates for their kind invitation and we will see you again in your future conferences.
DelRosarioLaw Managing Associate Pedrito Faytaren Jr. in coordination with Crew Benefit, Inc. gave a lecture on the POEA Contract, Amended Migrant Workers’ Act and Seafarer’s Protection Act as well as legal updates at the crew conference of Target Marine SA at City State Hotel on 6 December 2018 and Times Navigation, Inc. at New World Hotel Manila on 13 December 2018.
Our thanks to Crew Benefit, Inc., Target Marine SA and Times Navigation, Inc. for the kind invitation. We hope to see you again in your future conferences.
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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