Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 20 June 2019 (Issue 2019/07)

Supreme Court rules seafarer abandoned treatment when complaint was filed prematurely
 
The crew was hired by the company as Galley Steward on-board the ship.  After several months, the crew started experiencing seasickness and extreme low back pains. Despite medications administered by the ship's clinic, the pain persisted and extended down to the left thigh.
 
Subsequently, the crew was repatriated and was referred by the company to their designated physician for treatment.  With the company-designated physician, the crew was diagnosed with “lumbar spondylosis with disc extrusion, L3-L-4.”  The crew underwent physical therapy sessions and was advised to undergo surgery, which he refused.   On the 102^nd day of treatment, the crew was assessed with a grade “8” disability due to 2/3 loss of motion or lifting power of the trunk but was advised to undergo further therapy after three weeks.
 
On the 110^th day of treatment, the crew filed a Complaint with the Labor Arbiter for total and permanent disability, reimbursement of medical and transportation expenses, damages, attorney's fees and legal interest against the company.
 
The company insisted that the crew is only entitled to US$16,795 which is the equivalent of the grade “8” disability assessment as found by the company physician.
 
The Labor Arbiter awarded full disability benefits of US$60,000 to the crew on the justification that the assessment of the company-designated physician was premature and made only to comply with the 120 days rule.  The Labor Arbiter also held that the disability of the crew is total and permanent as he is now prevented from being re-employed.  This decision was affirmed by the NLRC on appeal.
 
The Court of Appeals also affirmed the award of benefits and held that the company-designated physician failed to arrive at a definite assessment of the crew’s fitness or disability within the 120/240-day periods provided under the law; that the company-designated physician's last report on the crew’s condition which "suggested" a disability grading of "Grade 8” is not a final or definite assessment of his fitness or disability because the crew was still required to return after three weeks for further examination; that regardless of the fact that the crew was required to return for further examination, the statutory 120/240-day periods would have elapsed without the crew being issued either a final and definitive disability assessment or a fit-to-work certification; that the crew's condition would not have improved even with the prescribed surgery, which he refused to undergo, because as admitted by the company-designated physician, it did not guarantee improvement of the crew’s condition; that to this day, the crew is still unable to resume his regular sea duties, his inability to find work continues, and he was not re-employed by the company; and that with the lapse of the statutory 1201240-day periods without the crew having gone back to work, he is deemed totally and permanently disabled.
 
Upon reaching the Supreme Court, the claim was dismissed.
 
The Court noted that upon the crew's repatriation, he underwent treatment under the auspices of the company-designated physician. He was advised to undergo surgery but the crew refused the procedure. Instead, he underwent physical therapy sessions. On the 102^nd day of treatment, the company designated physician assessed the crew’s condition as a Grade “8” disability and advised him to return for rehabilitation after three weeks. However, on the 110^th day of treatment, the crew filed the instant labor case for total and permanent disability benefits against the company. He did not return to the company-designated physician to continue with the latter's prescribed treatment.
 
By failing to continue with the treatment prescribed by the company-designated physician and instead filing the labor case before the expiration of the 120-day period, the crew violated the law and his contract with the company; he was guilty of abandoning his treatment. He filed the labor case before the 120/240¬day periods allowed under the Labor Code could elapse, and before the company-designated physician could render a definite assessment of his medical condition. For this reason, the filing of the labor case was premature.
 
The Court reiterated that that there is a procedure for conflict resolution covering disputes of the nature involved in the present case and that failure to observe said procedure is fatal.
 
Here, the crew did not comply with the terms of the POEA Contract. The failure of the company-designated doctor to issue an assessment was not of his doing but resulted from the crew’s refusal to cooperate and undergo further treatment. Such failure to abide with the procedure under the POEA Contract results in his non-entitlement to disability benefits.
 
 ln the absence of an opinion from a physician of his own choice, or a third one as the case may be, the crew must abide by the findings of the company-designated physician, which in this case remains unrefuted precisely since the crew plainly abandoned his treatment. The Grade 8 assessment of the company-designated physician therefore stands, and for this, the crew is entitled only to the equivalent monetary benefit of US$16,795.00 pursuant to the schedule of disability benefits under the POEA Contract.
 
Maunlad Trans, Inc., United Philippine Lines, Inc., Seachest Associates, Carnival Corporation and R. M. vs. R. R., G.R. No. 225705, April 1, 2019, First Division, Associate Justice Mariano Del Castillo, ponente Attys. Ralph Villamor and Catherine Mangahas of DelRosarioLaw handled for vessel interests)
 
 POEA Memorandum Circular: Deployment and crew/change ban in Tripoli, Libya
 
The POEA Governing Board issued Governing Board Resolution No. 3, Series of 2019 on 10 April2019, imposing a deployment ban on the processing and deployment of all Overseas Filipino Workers, including crew change and shore leave of Filipino seafarers in Tripoli and the following areas within the 100-kilometer radius, as follows:
 

The POEA Governing Board has reaffirmed the ban in Governing Board Resolution No. 4, Series of 2019 due to the worsening security situation brought about by the heightened violent clashes between the armed forces of the Libyan National Army and the Government of National Accord in Libya.
 
Promotions
 
DelRosarioLaw is proud to announce the promotions of Aldrich Del Rosario and Ralph Villamor.
 
Aldrich has now been appointed as Managing Associate with effect from 1 May 2019.  Aldrich is a Behavioral Sciences and Legal Management graduate of the De La Salle University. He earned his Bachelor of Laws degree in 2007 from the San Beda College of Law, Manila.  He completed his Master of Laws in Admiralty, graduating with distinction at Tulane University, New Orleans in 2011.   Aldrich has now been with the firm since 2008.
 
Ralph has now been appointed as Senior Associate with effect from 1 May 2019.  Ralph is a Political Science with specialization in International Relations graduate of Polytechnic University of the Philippines, Sta. Mesa, Manila and a 2013 Bachelor of Laws graduate of University of Sto. Tomas, Manila.  He has been with the firm since 2014.
 
Congratulations and all the best to Aldrich and Ralph.
 
Firm News
 
DelRosarioLaw Senior Associate Julius Yano gave a lecture on ECDIS, Navigational Incidents and Loss Prevention during the crew seminar organized by Synergy Ocean Maritime, Inc. last 8 June 2019.  The lecture discussed, among others, the regulations on ECDIS operation in relation to the importance of ECDIS training and familiarization. A case study was likewise presented and paramount importance on the proper use of an up-to-date system by competent crew was stressed.  The concept of Bridge Team Management was likewise discussed to ensure safe shipping.

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