Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 18 July 2019 (Issue 2019/08)

Supreme Court denies claim based on a medical condition which was not duly proven to be cause of repatriation

The seaman was hired as Chief Cook on-board the vessel.  The seaman alleged that aside from his normal duties, he also helped in the loading and unloading of tons of cargoes of skipjack, tuna fish and big squid from numerous fishing boats and then unloading them at different ports of destinations.
 
During employment, the seaman noticed swelling and felt pain in his testicles after lifting, carrying and loading heavy sacks of big squid into the ship and performing chamber cleaning works. Seaman informed his Chief Officer about this and he was given antibiotics for temporary relief.  One month later, the seaman alleged that he accidentally slipped and lost his balance. Although he felt a crack at his lower back, he did not make much of it given that the pain was tolerable at that time. He continued with his task of loading the cargoes together with the other crew members.
 
After some time, the seaman alleged that the swelling and the pain in his testicles, and his back pains became alarming so he reported the same to the Captain and requested for a referral to a port doctor.  When the ship reached the port, seaman was surprised when the Captain, instead of referring him to a port doctor, told him that he will be repatriated. Thus, seaman claimed that he just asked the Captain for a medical referral upon his arrival in the Philippines.
 
Upon repatriation, seaman immediately went to the local manning agents’ office and personally delivered the Captain’s medical referral letter.  The seaman was then referred to the company-designated physician for examination and treatment.  After laboratory examinations, the seaman was diagnosed with varicocoele, bilateral. Thus, the attending specialist recommended the seaman to undergo a procedure called varicocoelectomy, bilateral.  The seaman eventually underwent the said procedure.  Follow-up examinations showed good progress and the seaman was eventually declared fit to work. 
 
Doubtful of his fit to work assessment, the seaman wrote the company that despite his operation, he still continues to feel pain on his surgical wound and experience numbness on the site of operation. He also feels pain on his spine. He, thus, asked that he be reevaluated and further tests be performed on him to determine his present state.  As the seaman did not get any response on his requests from the company, he decided to undergo MRI of his lumbo-sacral spines on his own which showed degenerative disc disease, L3-L4 and L4-L5 and broad based disc bulge with an annular tear at L4-L5.  The seaman also consulted his own doctors for a second opinion who opined that the health problem of the seaman may have been brought about by strenuous physical activities and that the condition of his spine poses a serious health problem which requires immediate spine surgical intervention. He also obtained a medical report stating that he is already permanently unfit to work.   The seaman continued to write the company asking for medical assistance for his back pain but did not receive any reply.
 
The seaman initiated arbitration proceedings for payment of disability benefits against the company citing the medical reports from his personal doctors.  The company denied this as the seaman was already declared fit to work by the company-designated physician and that the back pains being complained of was not the cause of his repatriation and were never mentioned to the company-designated physician. 
 
The voluntary arbitrators awarded full disability benefits to the seaman resolving that his medical conditions were work-related.  The voluntary arbitrators believed the seaman’s explanation that he was not able to notice that the Captain’s medical referral did not mention his back pains because of his shock when he was asked to go home instead of being referred to a port doctor.  The seaman’s explanation that he complained of his back pains but was not minded by the company-designated doctor because that was not the cause of his repatriation was also sustained by the voluntary arbitrators.
 
The Court of Appeals affirmed the decision of the voluntary arbitrators.
 
When the case reached the Supreme Court, the claim for disability benefits was dismissed.
 
The back condition of the seaman was not duly recorded
 
The Court held that there is no denying that the seaman submitted himself to post-employment medical examination within the required period. However, what is peculiar in this case is that his examination was confined only to the pain and swelling in his testicles as had been mentioned in the doctor's referral, as well as for abdominal pain that he informed the doctor he had been experiencing on and off.  Seaman claimed that he brought to the attention of the company-designated physician his back pains but the doctor refused to examine him for such condition as it was not the ailment referred to him. 
 
The Court scrutinized the records of the case which reveals that the findings of the voluntary arbitrators are not supported by the evidence on record.  The Court noted that the seaman sent a letter to the company where he himself admitted that he requested a medical referral letter from his Captain because of his testicle pain only and not because of back pains.
 
The seaman’s letter shows that there is no truth that the ship captain failed to include his back pains in the doctor's referral and that because he was in a state of shock and disbelief upon learning that he will be immediately repatriated that he failed to notice such omission. The truth of the matter was that his back pains was not included in the referral precisely because his written request only asked for a referral for his testicular pain. If seaman had truly been experiencing continuing back pains while he was still on board the vessel, then it stands to reason that seaman's written request for medical referral would not only be for his testicular pain but would naturally include his back pains, especially so when he claimed that the same had become unbearable.
 
Moreover, seaman's contention that the company-designated physician refused to examine and treat him for his back pains because it was not included in the referral is not worthy of belief. Aside from the pain and swelling in his testicles, medical reports show that seaman's abdominal pain was likewise taken into account when the company-designated physician examined the condition of the seaman following his repatriation. This would show that contrary to the contention of the seaman, the company-designated physician would not have left undiagnosed and untreated an illness/injury that was brought to his attention, with or without a referral. Otherwise, the post-employment medical examination of the seaman would have only been confined to his testicular pain, the only ailment referred to the company-designated physician, and would not include his abdominal pain. Such was not the case here.
 
The three day rule applies to the claim for back pain
 
The Court held that seaman's failure to disclose his lumbar problem is fatal to his cause. Given that the seaman failed to bring to the attention of the company-designated physician his back pains thereby precluding the latter from assessing whether the same is work-related or not, the seaman is deemed not to have undergone the required post-employment medical examination contemplated under the POEA-SEC relative to his back pains for purposes of claiming compensation therefor.
 
The Court has consistently held that that the three-day mandatory reporting requirement must be strictly observed since within three days from repatriation, it would be fairly manageable for the company-designated physician to identify whether the illness or injury was contracted during the term of the seafarer's employment or that his working conditions increased the risk of contracting the ailment. Moreover, the post-employment medical examination within three days from arrival is required to ascertain the seafarer's physical condition, since to ignore the rule would set a precedent with negative repercussions because it would open the floodgates to seafarers claiming disability benefits that are not work-related or which arise after the employment. It would certainly be unfair to the employer who would have difficulty determining the cause of a claimant's illness considering the passage of time. In such a case, the employer would have no protection against unrelated claims. Therefore, it is the company-designated physician who must proclaim that the seafarer suffered a permanent disability, whether total or partial, due to either illness or injury, during the term of the latter's employment.
 
In this case, the company-designated physician had no opportunity to assess the back pains of the seaman since he made no mention of such back pains to the company-designated physician during his post-employment medical examination. To hold the company liable for disability benefits when they were robbed of the opportunity to determine the work relation of the injury now being complained of by the seaman would be the height of injustice.
 
Falcon Maritime and Allied Services, Inc., Yokohama Marine and Merchant Corp and F.J. vs. A. B. P., G.R. No. 223295, June 4, 2019, Second Division, Associate Justice Jose Reyes, Jr., ponente (Attys. Lovereal Ocampo and Denise Cabanos of DelRosarioLaw handled for vessel interests)
 
Firm News

DelRosarioLaw Senior Partners Charles Dela Cruz and Herbert Tria together with Senior Associate Julius Yano conducted a Workshop at Odfjell Philippines, Inc. on 1 July 2019. They covered a wide range of topics dealing with “Updates on the POEA Standard Contract and the 2016 POEA Rules governing Seafarers; Loss Prevention approaches in Crew Claims Handling; and General Average, Cargo and Pollution liability issues”.

Our thanks to Odfjell for the warm reception and interactive sessions.
 

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