Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 8 November 2018 (Issue 2018/14)
 
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Supreme Court rules that third doctor mechanism may be activated even after complaint has been filed; urinary bladder cancer held compensable
 
Seafarer was constantly engaged by the company for a period of almost 21 years as Quarter Master on-board its vessels.  During the last engagement of the seafarer, he noticed blood in his urine which prompted him to seek consultation.  After a series of tests, he was repatriated for further treatment and referred to the company-designated physician who diagnosed him with urinary bladder cancer.  After a series of treatment and tests, the company-designated physician assessed the seaman with a grade “7” disability.  The said doctor likewise stated that the risk factors for urinary bladder cancer include occupational exposure to aromatic amines and cigarette smoking.
 
The seafarer then consulted his own doctor who assessed him to be permanently unfit to work.  On this basis, the seafarer engaged counsel who wrote a letter to the company claiming full disability benefits and informing them of the second medical opinion they obtained.  Eventually, the seafarer filed a formal complaint with the National Conciliation and Mediation Board (NCMB)/Voluntary Arbitrator (VA).
 
The company denied the claim considering that the illness of the seafarer is not work-related and even if it is work-related, the entitlement should only be limited to the equivalent of the disability grading issued.  Further, the company argued that the seafarer failed to comply with the third doctor procedure under the POEA Contract when the second medical opinion was only presented after the complaint was filed.
 
The VA ruled in favor of the seafarer and awarded him maximum disability benefits and held that the company-designated doctor’s assessment is not reflective of the seriousness of the seaman’s condition.  On the other hand, the Court of Appeals modified the award to that equivalent to the grade “7” assessment of the company-designated doctor.
 
When the case reached the Supreme Court, the VA’s award for maximum disability benefits was reinstated.
 
Urinary bladder cancer held compensable
 
The Supreme Court noted that the company-designated doctor mentioned in his medical opinion that one of the risk factors for the seafarer in acquiring urinary bladder cancer was occupational exposure to aromatic amines.  This statement from the company-designated doctor is tantamount to a declaration that the illness of the seaman is work-related as his occupation exposed him to risks of acquiring his illness.  Also, the Court noted that the seaman was with the company for almost 20 years and such, it is plausible to conclude that seafarer’s work may have caused, contributed or at least aggravated his illness.  
 
Third doctor procedure may be activated even after filing of the complaint
 
The Court again explained that under the POEA Contract, if the doctor of the seafarer disagrees with the assessment of the company-designated physician, the parties may mutually appoint a third doctor whose assessment shall be final and binding.  This third doctor procedure is mandatory and if the seafarer fails to do this by presenting to the company a second medical opinion, then the assessment of the company-designated physician will be upheld.
 
It was argued by the company that the second medical opinion of the seafarer was brought to its attention only during the conferences of the case with the VA and after the complaint had already been filed.  As such, there was failure on the part of the seafarer to properly communicate the second medical opinion which is a breach of the third doctor procedure.
 
The Court noted that when the seafarer sent a letter to the company, this already signified his intention to refer the matter to a third doctor so that a final and binding assessment may be issued.  As such, said intent should have moved the company to activate the third doctor procedure.
 
The Court further held that the POEA Contract does not require a specific period within which the parties may seek the opinion of a third doctor, and they may do so even during the conferences before the labor tribunals.  Accordingly, upon being notified by the seafarer prior to or during the mandatory conferences before the labor tribunals, the burden to refer the case to a third doctor has shifted to the company.  As the company did not act on the referral to a third doctor, the findings of the company-designated physician is not binding.    
 
A. I. vs. NYK-Fil Ship Management, Inc./International Cruise Services, Ltd. et. Al., G.R. No. 237487, June 27, 2018, Third Division, Associate Justice Presbitero Velasco, Jr., ponente

 Firm News
 
DelRosarioLaw welcomes Ruben Jose G. Del Rosario Jr., as a Junior Associate of the firm. He is a 2011 Bachelor of Science in Management, Major in Legal Management graduate of Ateneo de Manila and a 2017 Bachelor of Laws graduate of San Beda College - Alabang.
 
Partner Charles Dela Cruz spoke on "Nuances of Retirement Law in the Philippines" at the 2nd HR Compliance Conference held on September 25-26, 2018 at SMX Aura Convention in Bonifacio Global City. It is a fitting follow through to the earlier edition this year also participated in by Atty. Dela Cruz. The Conference was based on the theme: "Sharpening the Saw of the HR Practitioner in Employment and Wage Laws".
 
Partners Charles Dela Cruz and Herbert Tria spoke on “Current Crew Claims Handling Issues related to the Data Privacy Act” at the 7th Annual Magsaysay Shipping and Logistics’ Marine Insurance Seminar held on 21 September 2018 at Robert Hall, Times Plaza Building, Manila. This year’s theme was “Key Challenges Facing Shipping and Logistics Supply Chain”.
 
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