Philippine Shipping Updates – Manning Industry [download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., December 16, 2008

This issue contains the following:
Season’s Greetings / Holiday Notice

Supreme Court issues two new decisions on company designated physicians


Season’s Greetings

To clients and friends,

In lieu of Christmas cards/give-aways, we have donated in your name to the Church of the Poor Apostolate (COPA) of the St. James the Great Parish.  COPA helps the 100 poorest parishes in the Philippines.  We have also donated to Tuloy Foundation which helps street children in Metro Manila.  These children are provided a home, education and their daily needs.  

As Del Rosario enters its 32nd year, we thank all who have continually given us their trust and confidence.  We always strive to live up to your expectations.   

We extend our very Merry Christmas to all and may the coming year be both peaceful and prosperous.

For and in behalf of all of us at Del Rosario & Del Rosario and Del Rosario Pandiphil Inc.

Ruben Del Rosario / Arturo Del Rosario

Holiday Notice

Due to officially declared holidays, our offices will be closed:

Thursday, 25 December to Thursday, 1 January 2009.  Our office will reopen Friday, 2 January 2009.  

Emails (not faxes) will be monitored but for urgent assistance, please call our:

24/7 mobile,   63 917 830 8384

Our website www.delrosariolaw.com has partners’ emergency numbers.


Supreme Court issues two new decisions on company designated physicians
In Magsaysay vs. Velasquez, G. R. N0. 179802, November 14, 2008, the Court reiterated its previous decisions that it is the company-designated physician that declares the degree of disability or fitness to work of a seafarer.
In this case, seafarer who has been employed for 10 contracts with shipowners suffered “staphylococcal bacterimia”.  The seafarer was treated and declared by the company physician to be fit to work.  However, seafarer consulted his own doctor and based on a single medical report declared seafarer with Grade 1 disability.
The Court held that the POEA contract is the law between the parties.  Under said contract, it is the company-designated physician who determines seafarer’s fitness or disability grading.  In the words of the Court:  
The court held that jurisprudence is replete with pronouncements that it is the company-designated physician’s findings which should form the basis of any disability claim of the seafarer. The company-designated physician cleared respondent for work resumption upon finding that his infection has subsided after successful medication. The court further held that it was undisputed that the recommendation of the respondent’s own physician was based on a single medical report which outlined the alleged findings and medical history of respondent despite the fact that said physician treated and examined respondent only once, not unlike the company-designated physician who outlined the progress of respondent’s successful treatment over a period of several months in several reports. Thus, the court ruled that between the findings of the company-designated physician and the physician appointed by respondent, the former deserves to be given greater evidentiary weight.


Magsaysay Maritime Corp. and/or Conrado N. Dela Cruz and Odjfell ASA vs. Jaime M. Velasquez and the Honorable Court of Appeals; G.R. No. 179802; First Division; November 14, 2008; Supreme Court Associate Justice Teresita J. Leonardo-De Castro, Ponente.

(Attys. Jerome Pampolina and Herbert Tria of Del Rosario & Del Rosario handled for vessel interests)

However, in NYK-Fil Ship Management vs. Talavera, G.R. No. 175894, November 14, 2008, the Court disagreed with the findings of the company physician and upheld the findings of seafarer’s own physician.
Seafarer, who worked as a fitter, was repatriated due to lumbar strain (back pain).  He underwent rehabilitation and declared fit to work by the company physician.  Seafarer sought a second opinion and his own doctor assessed him at Grade 8 disability or US$16,795.  He was also advised not to do any activity which produced stress on his back.  
The Labor Arbiter granted Grade 1 disability benefits or US$60,000 as seafarer was declared unfit to work as a fitter.
The complaint reached the Supreme Court.  The Court ruled that seafarer was entitled to benefits under the POEA contract.  As a fitter, he was required to do repair and maintenance works which required lifting, carrying, pushing, pulling and moving heavy equipment wherein he felt strain on his back.  Thus, there was reasonable connection between his back pain and the nature of his job.
The Court held that while it is the company-designated physician who must declare that the seaman suffers a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion, hence, it is the prerogative of the seafarer to request a second opinion and consult a physician of his choice.

However, the ruling was modified in that the Court reduced the Labor Arbiter’s award of $60,000 to US$16.795 which was the assessment of seafarer’s own doctor

NYK-Fil Ship Management Inc., and/or Josephine J. Francisco and TMM Co. Ltd., Tokyo, Japan vs. Alfonso T. Talavera; G.R. No. 175894; Second Division; November 14, 2008; Supreme Court Associate Justice Conchita Carpio-Morales, Ponente.


This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  For further information, please email This email address is being protected from spambots. You need JavaScript enabled to view it. .
This publication is sent from time to time to clients and friends.  To unsubscribe, reply to this email and put “unsubscribe” in the subject.

________________________________________
Del Rosario & Del Rosario
Office Address: 15th Floor, Pacific Star Building, Makati Avenue, 1200 Makati City, Philippines
Telephone: 63 2 810 1791 * Fax: 63 2 817 1740/ 63 2 810 3632
24/7 Emergency Mobile: (63) (917) 830-8384; This email address is being protected from spambots. You need JavaScript enabled to view it.; www.delrosario-pandiphil.com

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