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By: Ruben Del Rosario, Managing Partner, Del Rosario & Del Rosario, August 23, 2007
Voluntary Arbitrators’ decisions
Introduction
Under Section 29 of the POEA Standard Employment Contract, the parties to the contract agree to submit their claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators. However, most NLRC Labor Arbiters refuse to dismiss claims filed with them invoking Section 10 of the Migrant Workers Act which gives to the Labor Arbiters original and exclusive jurisdiction to hear and decide claims involving overseas contract workers. However, certain Labor Arbiters and NLRC Commissioners do honor the agreement of the parties and have dismissed the claims filed with them. These claims have been referred to voluntary arbitration and summarize below are some decisions by voluntary arbitrators.
Are decisions of voluntary arbitrators fair? Should you appoint said voluntary arbitrators to decide your case? I leave it up to the reader to decide.
This issue contains nine decisions of voluntary arbitrators. It also gives updates on whether such decision was appealed, settled, or executed.
Company physician’s findings of “fitness-to-work” upheld; however, $20,000 awarded as illness manifested during service on board the vessel
Arbitrators appoint third doctor; grants Grade 12 disability
Voluntary Arbitrator denies motion to appoint a panel of arbitrators; acts as sole arbitrator and awards seafarer $100,000 ruling that essential hypertension occurred during employment
Arbitrators rule in favor of an average disability grading between that of company physician and seafarer’s physician
Diabetes held compensable; master was “fit to work” prior to employment and further, CBA does not distinguish work-relation
Grade 7 disability awarded due to findings of third doctor
Company physician's findings of “fit to work” upheld
Seafarer not entitled to disability benefits but was granted US$10,000 moral and exemplary damages
Grade 1 disability awarded due to findings of third doctor
Company physician’s findings of “fitness-to-work” upheld; $20,000 awarded as illness manifested during service on board the vessel
Complainant was diagnosed with contracted gallbladder with calculi. After treatment, the company-designated physician declared that complainant is fit to work and that he may resume his previous activities. Complainant consulted his own physician (a cardiologist) who declared him unfit to resume work as a seaman.
Complainant now claims for permanent disability benefits.
The panel of voluntary arbitrators declared that complainant is not entitled to permanent total disability benefits. The certification of fitness by the company-designated physician is evidence that seafarer is fit to work.
The findings of the company doctor is given much weight and credence because he is a practitioner for a considerable number of years and considering the fact that he periodically evaluated the condition of the complainant while under his care.
However, the panel ruled that seafarer is entitled to an award of US$20,000 as his illness became apparent while he was on board the vessel and in addition, he has served on board the same company vessel for three consecutive years.
(Vessel appealed the decision of US$20,000 in the Court of Appeals. Said appeal is pending resolution. Seafarer’s motion for execution is pending).
Florencio Destriza vs. Fair Shipping Corp.,; AC-089-NCR-33-01-06-06; May 21, 2007; Panel of Arbitrators, Hon. Paterno Menzon, Chairman, Dean Froilan Bacungan and Capt. Constantino Arcellana Jr., Members
Arbitrators appoint third doctor; grants Grade 12 disability
Complainant ordinary seaman cleaned tanks on the vessel. He was afflicted with severe and chronic dermatitis. He was repatriated and was referred to the company-designated physician who declared that his illness is not work-related. Feeling aggrieved, complainant consulted an independent doctor who declared that his dermatitis rendered him permanently unfit for sea duty.
The panel of voluntary arbitrators agreed to appoint a third doctor who later declared that complainant developed and suffered from a skin ailment that rendered him fit for duty but that he cannot work as a seafarer cleaning vessel’s tanks.
The panel ruled that complainant’s illness is work-related but that he is only entitled to Grade 12 or equivalent to 10.45% of his disability compensation since complainant’s illness has already been cured or his sickness has been arrested. The claim for sickness allowances/sickwages was dismissed for having been already paid.
(Seafarer filed a Petition for Certiorari in the Court of Appeals and the same is still pending Resolution.)
Roldan Bondoc vs. Phil Transmarine Carriers, Inc.; AC-M-0030-NCR-7-02-13-06; January 10, 2007; MV Breeze Arrow; Capt. Leonardo Saulog, Chairman; Capt. Nicolas Dollolasa and Atty. Romeo Occena, Members
Voluntary Arbitrator denies motion to appoint a panel of arbitrators; acts as sole arbitrator and awards seafarer $100,000 ruling that essential hypertension occurred during employment
Seafarer (Complainant) has been working with the respondent since 1993 until December 2004. He was repatriated due to finished contract. Complainant intended to commence another employment with the respondent but failed to pass his PEME as he was found to have hypertension stage 1 and was declared unfit for sea duty.
Seafarer filed a case in the NLRC which was dismissed in favor of voluntary arbitration. The parties agreed to submit the case for voluntary arbitration by a panel of arbitrators. However, this was not indicated in the Minutes/Submission Agreement prepared by Conciliator-Mediator. The record was then turned over to NCMB Director Cruz who appointed Voluntary Arbitrator (VA) Taneo to arbitrate the case. The counsel for respondent reiterated that the parties agreed to submit the case to a panel of arbitrators and requested that two (2) additional members be chosen to form the panel. However, VA Taneo was insistent that he has sole authority to hear and decide the case by virtue of his appointment.
VA ruled in favor of the complainant and declared that his illness is compensable. Moreover, complainant’s ailment occurred during and in the course of his employment as 4th Engineer and it must be presumed that the nature of the claimant’s employment is the cause of the disease. Furthermore, the office said that there can be no question that essential hypertension and heart ailment are compensable illnesses. The award of US$100,000.00 in accordance with the CBA (TCCC/NON-IBF) between AMOSUP and KGJS A/S including sickness allowance and attorney’s fees to the complainant was ordered by the office.
(This case is the subject of petitions to the Court of Appeals questioning the jurisdiction of the Voluntary Arbitrator and also assailing the decision on the merits. No Temporary Restraining Order was issued by the Court of Appeals. The arbitrator issued a writ of execution. The judgment amount was deposited by vessel in the NCMB but same has now been released to seafarer.)
Alfredo Ricalde vs. KGJS Fleet Management, Inc.; AC-0306-NCR-77-01-12-06; May 21, 2007; MV Merlin Arrow; Hon. Sebastian Taneo, Voluntary Arbitrator
Arbitrators rule in favor of an average disability grading between that of company physician and seafarer’s physician
Complainant-seafarer suffered knee injury. He finished his employment contract, was repatriated and was referred to the company-designated physician for post-employment medical treatment. He was given a disability grading of Grade 10, amounting to US$14,105.00 under the CBA. Complainant then consulted his own doctor who declared his knee ailment as equivalent to impediment of Grade 2 in accordance with the CBA with the Norwegian Shipping Association. He then filed a complaint for a total disability benefits.
The panel of arbitrators ruled in favor of a disability grading of Grade 6 or US$35,000.00 which is 50% compensation of US$70,000. This is based on Section 32, No. 11 of the Schedule of Disabilities of the POEA Contract which has Grade 6 for loss of one foot or ankle joint which is closely akin to seafarer’s condition. Moreover, the panel of arbitrators firmly believes that the complainant is entitled to disability compensation higher than what a Grade 10 impediment entails but much lower than what a Grade 2 impediment suggests.
(The vessel settled the case at the judgment award of US$35,000).
Dominador Rosales vs. NFD Int’l Manning Agency, Inc. and/or Barber Ship Management, Ltd., ; PAC-0091-72-03-11-05; May 22, 2006; MV Tourcoing; Panel of Arbitrators: Dean Rene Ofreneo, Chairman, Capt. Constantino Arcellana and Atty. Angel Ancheta, Members
Diabetes held compensable
The Master of the vessel was on board for 19 days when he suffered a heart attack coupled with findings of diabetes milletus. Vessel considered the illness as pre-existing and not work-related and refused to pay disability benefits.
Master argued that he was medically fit when he boarded the vessel as per his pre-employment medical examination. He never knew he had diabetes and never concealed the same.
The arbitrator ruled that the master must be compensated for Grade 1 disability as he is unable to return to work at sea.
It is the vessel's obligation to send to sea seafarers who are fit to work. The vessel is responsible for ensuring that proper medical tests such as FBS (fasting blood sugar) should be performed to determine whether seafarer is suffering from diabetes milletus. This the vessel failed to do and in fact, certified the master to be fit to work. Further, the CBA does not distinguish whether an illness is "pre-existing" and "non-work related" in order to be compensable. The master must therefore be awarded full disability benefits.
(The arbitrator’s ruling was appealed to the Court of Appeals. The Court of Appeals eventually ruled that the seafarer is not entitled to disability benefits as his illness is pre-existing and not work-related and that the CBA would not apply because it covers only disability due to accidental injury. The reimbursement of medical expenses was however sustained since the symptoms of the seafarer’s illness manifested on board the vessel. The case was settled by members paying medical expenses.)
Madrangca vs. Island Overseas Transport Corporation, et. al., ACMVA0018-NCR-02-01-2005, January 6, 2006, Capt. Rodolfo A. Aspillaga, Voluntary Arbitrator
Grade 7 disability awarded due to findings of third doctor
Seafarer twisted his right knee while going down the vessel stairs. He was diagnosed to have stretched ligaments and atrophy of calf of leg muscles. The company doctor gave a Grade 9 disability. Seafarer hired his own doctor who gave a Grade 7 disability.
The Voluntary Arbitrator (VA) ruled that seafarer is to be referred to a third doctor. The parties failed to agree on a third doctor and thus the VA appointed a third doctor.
The third doctor examined seafarer and gave a disability grading of Grade 7.
The Val ruled that the seafarer should be awarded Grade 7 disability. The CBA is silent as to how a third doctor should be chosen in case the parties could not agree.
It is but fair and reasonable that the arbitrators are to choose a third doctor. The third doctor, Dr. Elvira G. Abu cay, who is from the Social Security System has found a
Grade 7 disability. Dr. Abu cay found seafarer to be "suffering from severe pain on his right knee resulting in disability to ambulate, to staring to bend his leg; instability of the knee joint due to injury of the ligaments; deformity/atrophy of the muscle resulting to markedly severe weakness of the affected extremity."
The VA concurred with said grading as he has seen the seafarer who could barely manage to walk and was incapable of work because of his disabled legs.
(Case was settled based on award of voluntary arbitrator.)
Aparri vs. Ace Navigation Company, et. al., PAC293-NCR-03-02-2005, December 8, 2005, Atty. Romeo S. Occena, Voluntary Arbitrator
Company physician's findings of “fit to work” upheld
Seafarer was repatriated due to "ischemic heart disease and sinusitis". The company doctor treated him for four months and declared him fit to work. Seafarer consulted his own physician who found him with "hypertensive cardiovascular disease, Grade IV (68.66%)".
The panel of arbitrators ruled in favor of vessel. As between the findings of the company physician who treated seafarer continuously for four months and the independent physician who saw seafarer only once, the panel put more weight on the findings of the company physician. Both the POEA contract and the AMOSUP CBA require the certification of the company physician for any disability assessment. The findings of the company physician must be accorded recognition and respect in the absence of manifest bad faith, malice or fraud.
Also, the Final Evaluation Certificate showed that seafarer's coronary angiography showed very insignificant artery intimal irregularities and normal blood pressure. A subsequent examination did not change the findings.
(The seafarer has appealed the decision to the Court of Appeals).
Ibasco vs. C.F. Sharp, et. al., AC-0089-NCR-39-01-06-2005, December 8, 2005, Panel of Arbitrators: Hon. Paterno D. Menzon, Chairman, Capt. Jaime Aquino and Romeo C. Cruz, Members
Seafarer not entitled to disability benefits but was granted US$10,000 moral and exemplary damages
Seafarer alleged that he asked to be repatriated as he suffered stomach pain which was not treated properly. Vessel however alleged that seafarer was disobeying orders and was not behaving properly and thus was repatriated due to mutual consent, an accommodation made to favor complainant when he re-applies for employment. On arrival in Manila, seafarer had his stomach pain treated and he was found to be suffering from "cholecystitis, cholecystoliathiasis". He underwent cholecystectomy which he tolerated well. Seafarer filed for disability benefits.
The Voluntary Arbitrator ruled that seafarer is not entitled to disability benefits as he failed to establish he was disabled. He was however awarded medical expenses conditioned on presentation of receipts as his illness can be traced to his service on board the vessel. He was also awarded sickness allowance from the time he arrived Manila until he was discharged from the hospital.
The Voluntary Arbitrator also awarded moral damages and exemplary damages in the amount of P500,000 (approximately US$10,000) as "there was malice in the act of the Master to insist on the complainant that he should be repatriated for reasons of mutual consent despite complainant's plea to be repatriated to seek medical treatment in the Philippines."
(Case was settled by vessel for US$5,960.33).
Tanteo vs. Phil. Hammonia, et. al., AC-MVA008-NCR-00-01-01-2005, October 11, 2005, Capt. Rodolfo A. Aspillaga, Voluntary Arbitrator
Grade 1 disability awarded due to findings of third doctor
Seafarer was repatriated due to "lumbar spondilitis" (back pain). The company doctor gave a Grade 11 disability (US$8,958) whereas the seafarer's doctor gave a
Grade 1 disability and opined that seafarer "cannot be expected to take part in any form of useful employment".
The panel of arbitrators tried to get the parties and the two doctors to agree to a third doctor. None was agreed upon and thus, the panel chose Dr. Elvira G. Abucay of the Social Security System to be the third doctor.
Dr. Abucay's findings were: "...while aboard sea vessel (seafarer) complained of low back pain with numbness on both legs.. after lifting a heavy object while on duty...based on my physical examination and interview, (seafarer) is complaining of severe pain on his lumbosacral area resulting to difficulty of bending and standing most of all after having a long trip. He even had urinary incontinence and difficulty of erection. He also lost sensation his lower extremities and occasionally numbness of the left side of the body...recommends Grade 1 disability."
The panel awarded Grade 1 disability (US$60,000) to seafarer.
(Vessel filed an appeal with the Court of Appeals where it is still pending decision).
Bonilla vs. Ace Navigation Company, et. al., PAC293-NCR-02-08-2004, December 15, 2005, Panel of Arbitrators: Atty. Romeo Occena, Chairman; Romeo Cruz Jr. and Capt. Nicolas T. Dollolasa, Members
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Ruben Del Rosario, Managing Partner
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