Philippine Shipping Update – Manning Industry [Download]

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., May 13, 2014 (Issue 2014/07)

Court declares seafarer permanently and totally disabled even prior to lapse of 240 days as there is impossibility seafarer can still be fit to work


Seafarer was hired as AB.  During his employment, seafarer experienced chest pains, shortness of breath and fatigue.  He was diagnosed by a shore doctor who found him to be suffering from myocardial ischemia and coronary heart disease for which reason he was repatriated on 18 September 2005.  Seafarer was immediately referred to the company-designated doctor who confirmed the initial diagnosis.  Eventually, through further examination, seafarer was found to be suffering from severe 3-vessel coronary artery disease and was scheduled to undergo coronary artery bypass surgery on 24 February 2006.  Seafarer also consulted two other doctors who confirmed the findings of the company-designated doctor.

While the seafarer was able to undergo the suggested medical procedure of coronary artery bypass surgery on 24 February 2006, he already instituted a formal complaint with the NLRC for payment of disability benefits on 10 February 2006.  Nevertheless, the seafarer continued to consult the company-designated doctor, the last date of which was on 19 April 2006.  There was no final medical assessment issued by the company-designated doctor on the un/fitness of the seafarer.

The Labor Arbiter awarded full disability benefits to the seafarer considering that he was already permanently disabled based on the medical report issued by his personal doctor.

The NLRC, on the other hand, denied the claim considering that seafarer’s illness cannot be considered work-related reasoning that this is a lifestyle disease that develops over time.

The Court of Appeals reinstated the decision of the Labor Arbiter and held seaman’s illness to be work-related.  Also, the Court of Appeals held that since the company-designated doctor did not issue a final medical assessment within 240 days so there can be no other conclusion other than the seaman is permanently and totally disabled.

The Supreme Court affirmed the award of disability benefits. 

Illness is work-related

In ruling that the illness is work-related, the Supreme Court held that in the performance of his duties as AB, seafarer inhaled, was exposed to, and came into direct contact with various injurious and harmful chemicals, dust, fumes/ emissions, and other irritant agents; that he performed strenuous tasks such as lifting, pulling, pushing and/or moving equipment and materials on board the ship; that he was constantly exposed to varying temperatures of extreme hot and cold as the ship crossed ocean boundaries; that he was exposed as well to harsh weather conditions; that in most instances, he was required to perform overtime work; and that the work of an AB is both physically and mentally stressful. It does not require much imagination to realize or conclude that these tasks could very well cause the illness of the seafarer. 

No need to wait for company-designated doctor’s assessment if it is evident that even after 240 days, the seafarer would still be unable to work

The rule is that the company-designated physician must arrive at a definite assessment of the seafarer’s fitness to work or permanent disability within the period of 120 or 240 days, pursuant to the Labor Code.   If he fails to do so and the seafarer’s medical condition remains unresolved, the latter shall be deemed totally and permanently disabled.

Seafarer was repatriated on 18 September 2005. He was further examined by the company-designated physician on 21, 23 and 30 September 2005; 6 October 2005; 2, 13 and 17 February 2006; 6 and 20 March 2006; and on 19 April 2006. And beginning from the 2 February 2006 medical report, seafarer was diagnosed by the company-designated physician with severe 3-vessel coronary artery disease, and was scheduled for coronary artery bypass surgery on 24 February 2006. After surgery, seafarer continued his treatment with the company-designated doctor, who on the other hand continued to diagnose seafarer with severe coronary artery disease even on the last consultation on 19 April 2006.

Concededly, the period 18 September 2005 to 19 April 2006 is less than the statutory 240-day – or 8-month – period. Nonetheless, it is impossible to expect that by May 19, 2006, or on the last day of the statutory 240-day period, seafarer would be declared fit to work when just recently – or on 24 February 2006 – he underwent coronary artery bypass graft surgery; by then, seafarer would not have sufficiently recovered. In other words, it became evident as early as 19 April 2006 that respondent was permanently and totally disabled, unfit to return to work as seafarer and earn therefrom, given his delicate post-operative condition; a definitive assessment by the company-designated doctor before 19 May 2006 was unnecessary. Seafarer would to all intents and purposes still be unfit for sea duty.

Complaint is not premature

The Court said that it cannot be argued that seafarer’s premature filing of the complaint on 10 February 2006 (even before lapse of 240 days) should affect the outcome of the case. It is difficult to blame the seafarer for deciding to sue, considering that he has been diagnosed by no less than three separate physicians with severe three-vessel coronary artery disease which required bypass procedure. The seafarer may have been acting under a sense of extreme urgency given the life-threatening nature of his illness. The filing of the complaint may have been designed to pressure the company into taking action to address his condition, or to recover expenses should he decide to proceed with the bypass procedure on his own. Either way, the Court cannot subscribe to the view that there was a premature resort to litigation since the seafarer was still undergoing treatment for his illness and the company-designated physician has not completed treatment and made a definite assessment of his condition.

It may even be said that with the diagnosis that seafarer was suffering from severe three-vessel coronary artery disease which required immediate bypass graft procedure or surgery, seafarer believed himself permanently and totally disabled which thus led him to demand disability benefits and thereafter file the case when the company ignored his demand.


Author’s Note: The Court had previously and uniformly laid down two rules with respect to the 240 days issue:

1.         The first rule is that the company-designated doctor is given 120 days to determine the fitness or degree of disability of the seafarer.  If further treatment is necessary, such period may be extended up to 240 days.   It is only after the lapse of the 120/240 days period and no final assessment is issued would he be considered as permanently and totally disabled.

2.         A seafarer is considered to be under a state of temporary total disability within 120/240 days.  If he files a claim within said period, the same is dismissible for lack of cause of action.

Following the above rules, the Supreme Court should have dismissed the claim of the seafarer considering that at the time he filed the complaint, he was only in a state of temporary disability and cannot be considered permanently disabled.  As such, he did not have any cause of action to claim permanent disability benefits. 

In this case, it would appear that the Supreme Court has now placed an exception to the rules they have previously laid down.  It would now appear to be the exception that if there is impossibility of the seaman to be declared fit to work within 240 days, then he can now be considered disabled even before the expiration of the 240 days period.

In the same manner, the claim may not be dismissible even if filed within the 120/240 days period if there is extreme urgency present such as a life threatening illness.



Fil-Pride Shipping Company Inc., Captain Nicolas T. Dollolasa and Ocean Eagle Shipmanagement Company, PTE., Ltd. vs. Edgar A. Balasta; G.R. No. 193047; Second Division; March 3, 2014 ; Supreme Court Associate Justice Mariano Del Castillo, Ponente.





--------------------

“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497

“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, the Legal 500, 2014, p. 494

“This unparalleled shipping firm remains at the forefront of the market.” “They are in a league of their own.” “They are the runaway leaders in shipping.” Chambers Asia Pacific, 2012 p. 832
, 2012 p. 832

---------------------------


Social Networking Sites

Twitter ID: delrosariopandi    Facebook Page: DelRosarioLaw 

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 e-mail 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 / Del Rosario Pandiphil, Inc.
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 mobile: (63) (917) 830-8384; This e-mail address is being protected from spambots. You need JavaScript enabled to view it.; www.delrosariolaw.com