SUPREME COURT UPHOLDS THIRD DOCTOR'S FINDING ON DISABILITY GRADING

Seafarer was hired as a Fitter by the company under a POEA Contract with ITF IBF TCC AMOSUP Collective Bargaining Agreement (CBA). During his employment, the seafarer complained of knee pain and was repatriated to the Philippines for further treatment.
 
The company-designated physician (CDP) and diagnosed the seafarer with chondromalacia patella, right or patellofemoral syndrome. Eventually, the CDP assessed the seafarer with a Grade 10 disability.  The seafarer then consulted another doctor who gave him a Grade 6 disability and unfit to work as a seaman.  Thus, the seafarer filed a complaint before the Labor Arbiter (LA) for total and permanent disability compensation. During the preliminary conference, the parties agreed to refer the seafarer to a third doctor who declared him unfit to work as a seafarer, with a Grade 7 disability.
 
The company offered to pay US$20,900.00 equivalent to the Grade 7 disability under the POEA Contract but the seafarer refused the offer. Seafarer argued that he should be entitled to US$93,154.00 under the CBA as he was declared unfit to work by the third doctor.
 
The Labor Arbiter awarded full disability benefits of US$93,154 as he was declared unfit to work by the third doctor based on the CBA.  However, the NLRC modified the award and reduced the same to US$20,900 in view of the Grade 7 disability and finding that the CBA is not applicable because the condition did not arise from an accident.
 
The seafarer elevated the case to the Court of Appeals (CA) who reinstated the ruling of the LA. Eventually, the Supreme Court (SC) reinstated the award of the NLRC.
 
The third doctor's finding that seafarer's condition is Grade 7 disability is final and binding
 
The POEA Contract provides for a mandatory conflict resolution procedure when the findings of the CDP and the seafarer's appointed physician are different.  In this case, the CDP and seafarer's appointed physician were consistent in their diagnoses that seafarer was suffering from a partial permanent disability. They differed only as to the disability rating. The parties then agreed to refer the seafarer to a third doctor in compliance with the mandatory conflict resolution procedure. The parties' jointly chosen doctor issued a medical report which states: My recommendation is unfit to work as a seaman with disability grade 7 (complete immobility of the knee joint in strong flexion).
 
As certified by the third doctor, seafarer's condition is a Grade 7 disability which is a partial permanent disability under the POEA Contract. Section 32 of the POEA Contract provides a schedule of disability from Grade 1 to Grade 14. The provision states in part: Any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability. Only disabilities classified as Grade 1 are considered total permanent disability. Thus, disabilities with a rating from Grade 2 to Grade 14 are classified as partial permanent disability. The CA and LA focused only on the phrase "unfit to work as a seaman" and interpreted this as total and permanent disability and completely disregarded the Grade 7 rating given by the third doctor. As correctly held by the NLRC, the third doctor’s report must be upheld in its entirety. Said medical report does not indicate that seafarer was suffering from total and permanent disability. If so, the third doctor would have rated his disability as Grade 1. The phrase "unfit to work as a seaman" should be understood in the context of the third doctor having also given a Grade 7 rating. Thus, the rational understanding of this phrase is that it merely indicates that the seafarer is suffering from a disability which renders him physically incapable for sea duties. The report clearly did not declare that he was suffering from total and permanent disability but rather, suffering only from Grade 7 partial permanent disability.   There can be no other basis for the seafarer's medical condition as the third doctor's medical report is final and conclusive on the parties. Thus, the Grade 7 disability rating must be respected and upheld by the Court.
 
The POEA Contract applies as seafarer’s injury was not the result of an accident
 
The seafarer’s employment is covered by a CBA which provides that its disability compensation scheme applies only when the seafarer's disability or injury is caused by an accident. However, the Court noted that seafarer’s alleged "bumping of the knee on the stair" cannot be considered an accident. Without any specific details as to how the incident occurred or events that transpired before and after the incident, it cannot be concluded that the same was an accident. It cannot be determined as an unlooked-for mishap, occurrence, or fortuitous event. It did not arise from an unusual circumstance, calamity, casualty, catastrophe, disaster, or undesirable happening.
 
The Court also noted that seafarer did not report any accident while on board the ship. He alleged that he bumped his knee sometime July 2012 but he only consulted the on-board physician three months after. The Illness/Injury Report dated does not contain any information about an accident. In labor cases, parties who claim entitlement to a benefit or compensation must present substantial evidence to support their allegations. The lack of a clear corroborative report and inconsistencies in information given by the seafarer to his doctors as to the cause of his injury, cast doubt on whether the "bumping of the knee" or any other accident really took place. As there is no substantial evidence proving that seafarer's disability was caused by an accident, the CBA does not apply and the provisions of the POEA Contract prevail.
 
Pacific Ocean Manning, Inc., Barker Hill Enterprises, S.A., et. al vs. F.C., G.R. No. 230527, June 14, 2021; First Division, Associate Justice Alfredo Benjamin Caguioa, ponente

POEA IMPOSES TOTAL DEPLOYMENT BAN TO UKRAINE

In view of the on-going military actions taken by Russia in Ukraine resulting in a worsening political and security situation, the Department of Foreign Affairs (DFA) has raised the alert level in Ukraine to Level 4.  In turn the POEA has issued Governing Board Resolution No. 1, Series of 2022 placing a total ban on the processing and deployment of workers to Ukraine and imposing a mandatory repatriation of Overseas Filipino Workers (OFWs).  The deployment ban covers crew change and shore leave of Filipino seafarers in Ukraine.
 
In a subsequent advisory, the POEA has reminded manning agencies to report and coordinate with them, the DFA and the Overseas Workers Welfare Administration (OWWA)
To facilitate the immediate and safe repatriation of OFWs from areas classified as under Alert Level 4.
 
Also, the POEA reminded that the disembarkation of seafarers by reason of mandatory evacuation should not be construed as abandonment of employment or desertion.

AMENDED PUBLIC SERVICE ACT

On 21 March 2022, President Rodrigo R. Duterte signed Republic Act 11659 amending the Public Service Act (“RA 11659”). It will take effect 15 days from publication in the Official Gazette or newspaper of general circulation.
 
Section 4 of RA 11659 states that “notwithstanding any law to the contrary, nationality requirements shall not be imposed by the relevant Administrative Agencies on any public service not classified as a public utility.” Under RA 11659, for those in the business of transporting passenger or goods, only “Public Utility Vehicles” (i.e.  trucks-for-hire, UV express service, public utility buses (PUBs), public utility jeepneys (PUJs), tricycles, filcabs and taxis) are considered as public utilities. Excluded in the list of public utilities are domestic shipping companies which means that although they are arguably still considered engaged in public services they are no longer covered by any nationality requirement (e.g. 60% Filipino – 40% foreign ownership limitation). In several news reports including those released by the Philippine News Agency (https://www.pna.gov.ph/articles/1170293) which is the official news agency of the government, it was confirmed that 100% foreign ownership is already allowed in shipping industries. This is also the position of the Board of Investments.
 
We are seeking guidance from the Maritime Industry Authority (MARINA) on the requirements to set-up a 100% foreign-owned domestic shipping enterprise and to secure the corresponding permits/registration. We expect the MARINA to issue the corresponding circular to implement RA 11659 for domestic shipping enterprises. We will revert with developments on this very recent and groundbreaking piece of legislation.

FIRM NEWS

DelRosarioLaw Partner Gina Guinto was invited to be a panelist last 8 March 2022 at the Anglo-Eastern Worldwide Women’s Day Special Webinar entitled, “Celebrating SHEroes @ AE”, Gina also spoke on Breaking the Bias - within the workplace and family emphasizing the very important role of women not only in the shipping industry but also to society. 

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