Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., January 5, 2017 (Issue 2017/01)

In this issue:

Claim for disability benefits denied as seafarer who filed claim several months after he was declared fit-to-work  
Firm News - Promotions

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

Claim for disability benefits denied as seafarer filed claim several months after he was declared fit-to-work  

The seafarer was engaged as Bosun.  During his employment, he felt severe pain in his stomach causing him to feel weak.  While emptying his bowels, he noticed that there was fresh blood in his stool.  As this persisted, he reported the matter to his superior and was referred to a local shore doctor for examination.  He was diagnosed with hemorrhage of the upper digestive tract and hypertension.  He was then repatriated for further medical treatment with the company-designated doctor.  Seafarer’s treatment lasted for fifty five (55) days until he was declared fit by the doctor.  About seventeen (17) months thereafter, the seafarer filed a claim for disability benefits because of his condition.  He later obtained a medical certificate from his personal doctor stating that he was now totally and permanently disabled because of a work-related condition.

On this basis, the Labor Arbiter awarded the seafarer full disability benefits.  On appeal, both the NLRC and the Court of Appeals dismissed the claim for disability benefits.

With the Supreme Court, the claim was again dismissed.

120 days rule not a magic wand

Seafarer argued that he should be entitled to full disability benefits because he was incapacitated for more than 120 days because of his illness.  The Court struck down this argument and held that inability of a seafarer to resume work for more than 120 days is not a magic wand that automatically warrants the grant of total and permanent disability benefits in his favor.  It cannot be used as a cure-all formula for all maritime compensation cases.  Its application must depend on the circumstances of the case, including compliance with the parties’ contractual duties and obligations as laid down in the employment contract.

Moreover, the Court held that the 2010 amendment to the POEA Contract finally clarifies that for work-related illnesses acquired by seafarers from the time the 2010 amendment of the contract took effect, the declaration of disability should no longer be based on the number of days the seafarer was treated or entitled to sickness allowance, but rather on the disability grading he received from the company-designated doctor, or in the event of a contradictory opinion from seafarer’s chosen doctor, a third doctor mutually appointed by the parties.

Reliance on the findings of the company-designated doctor

The Court noted that the seafarer was under the medical care and supervision of the company-designated doctor from the time of repatriation until he was declared fit to work – a period that spanned for 55 days.  The finding was based on thorough medical examination and supervision which was backed by laboratory examinations.  

On the other hand, the seafarer’s chosen doctor issued a medical opinion declaring seafarer to be permanently and totally unfit to work only after a single consultation without any laboratory examination conducted to validate said opinion.  There were no supporting progress reports to show actual unfitness for work.  As such, it was only proper to disregard the findings of the seafarer’s chosen doctor.

Claim declared to be premature and a mere afterthought

The Court noted that seafarer sought consultation with his personal doctor four (4) days after he filed his claim for disability benefits with the NLRC.  On this basis, the Court held that the claim was premature and at the time it was filed with the NLRC, seafarer had no cause of action.

The Court explained that at the time the seafarer filed his claim for disability benefits, he had no sufficient basis to support the same considering that it was only after that he obtained the opinion from his personal doctor.  Thus, the claim was not only premature but also lacks cause of action.

The Court also noted that the act of the seafarer in filing a claim for disability benefits and obtaining a second medical opinion 17 months after he was declared fit to work was a mere afterthought on his part in order to receive higher compensation.

Third doctor procedure not followedThe Court held that even if they are to give value to the afterthought consultation of the seafarer with his chosen doctor, they will still uphold the findings of the company-designated physician for failure of the seafarer to initiate the conflict resolution procedure in the contract.  It should be noted that the seafarer did not properly contest the findings of the company-designated doctor by timely obtaining the opinion of his chosen doctor.  Instead, he filed a claim long after he was declared fit to work and obtained a second medical opinion only after the filing of the complaint.

Genaro Calimlim vs. Wallem Maritime Services, Inc., Wallem GMBH & Co. KG and Mr. Reginaldo Oben, G.R. No. 220629, November 23, 2016; Second Division, Associate Justice Jose Catral Mendoza, ponente (Attys. Florencio Aquino and Maricris Ferrer of DelRosarioLaw handled for vessel interests.)

Firm News - Promotions

Del Rosario & Del Rosario Law Offices are pleased to announce the appointment of Pamela Portia Coseip-Abarico as a Partner of the firm.  

Pam is a shipping litigation lawyer and has wide experience in maritime labor employment issues.  She has extensively practiced in the NLRC and the NCMB.  She has also handled complex transport litigation issues.  She is a graduate of Political Science from the University of the Philippines (Cum Laude) and the Ateneo de Manila University School of Law.


The firm also announces the appointment of Ma. Gina Guinto as Managing Associate.  

Gina has handled a number of high profile maritime casualties and has specialized in maritime employment issues practicing in the NCMB, NLRC and the POEA.  She is a Business Management graduate from the University of the Philippines (Cum Laude) and a graduate of law at the Ateneo de Manila University School of Law.

Finally, the firm announces the appointments of Lovereal Ocampo-Carullo, Jamella Joya and David Valencia as Senior Associates.

Lovereal is a Bachelor of Science in Development Communication graduate from the University of the Philippines Los Banos.  She took up her Bachelor of Laws at the San Beda College, Mendiola.

Jamella is a Political Science graduate of De La Salle University Manila.  She took up her Bachelor of Laws at the San Beda College, Mendiola.

David is a Legal Management graduate of San Beda College, Mendiola and also finished his Bachelor of Laws in the same college.

Congratulations!!!

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

“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

“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties.  A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949

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

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.