Holiday Notice: In view of the Christmas holidays, our offices will be closed on 24-25 December 2019, 30-31 December 2019 and 1 January 2020. Emails will be monitored but for urgent matters, please call our 24/7 mobile +63 917 8308384.
 
 
Christmas Message
 
Dear clients and friends,
 
We extend to you and your family the best of the Christmas season and a New Year 2020 that is filled with good health, happiness and prosperity.
 
As part of our CSR program for this year, we participated in Brigada Eskuwela activities of the Philippines Norwegian Business Council at Libis Elementary School in Quezon City, Philippines. We likewise gave assistance to the Sacred Heart Chapel at West Crame, a chapel that serves our soldiers; the Church of the Poor Apostolate of the St. James the Great Parish, an organization that helps the 100 poorest parishes and those that suffer calamities such as typhoons; and the Tuloy Foundation for street children, which provides a home and education to hundreds of abandoned and orphaned children. 
 
We look forward to our 43^rd year and our continued improvement to give you the service you deserve.  We are now 100 strong, with 35 lawyers and 25 claims handlers and a support staff of 40.  All of us wish you a very Merry Christmas and a Happy New Year.
 
Christmas in the Philippines is all about spending time with your family and friends.  It is unfortunate that there are countless Filipino seafarers on board ships that are unable to be with their loved ones.  Please say a fervent prayer for them and if you see them around, kindly greet them “Maligayang Pasko” from all of us here in the Philippines.
 
DelRosarioLaw / DelRosario Pandiphil
 
 
Supreme Court rules CBA not applicable as accident not proven
 
Seafarer was engaged as Bosun on board the ship.  His employment was covered by the IBF-JSU/PSU-IMMAJ Collective Bargaining Agreement (CBA for short) which requires a disability to arise from an accident for compensation.  He alleged that during employment, he slipped while cleaning the cargo hold under bad weather condition. The Master advised the seafarer that since his end of contract is nearing, to just seek medical attention when he arrives in the Philippines.  Upon repatriation, the seafarer was referred to the company-designated physician who diagnosed him with bilateral nephrolithiasis and lumbar spondylosis. After treatment, the company-designated physician assessed the seafarer with a grade “8” disability for his back condition but declared the bilateral nephrolithiasis to be not work-related.
 
The seafarer consulted his own doctor and then filed a complaint for disability benefits with the Labor Arbiter based on the CBA. 
 
The company disputed the claim as seafarer’s bilateral nephrolithiasis is not work related as certified by the company-designated physician. Meanwhile, the lumbar spondylosis was classified as grade “8” disability only and that the CBA did not apply as the condition was not due to an accident. 
 
Both the Labor Arbiter and the NLRC awarded full disability benefits to the seafarer and applied the CBA rates.  They held that the seafarer’s disability was caused by an accident which makes the CBA applicable and his condition has prevented him from resuming to seafaring duties. 
 
The Court of Appeals disagreed with the labor courts and modified the award of disability benefits to US$16,795 based on the grade “8” disability assessment of the company-designated physician.  The appellate court likewise denied applicability of the CBA and applied the rates found in the POEA Contract.  
 
When the case reached the Supreme Court, the award of the Court of Appeals was affirmed.
 
Third doctor procedure not followed
 
The Court noted the conflicting findings of the company-designated physician (grade “8” disability) and that of seafarer’s physician of choice (unfit to go back to work) and that the dispute should have been referred to a mutually appointed doctor in accordance with the provisions of the CBA and the POEA Contract.  The Court further held that it is the duty of the seafarer to signify his intent to refer the conflict between the findings of the company-designated physician and that of his own doctor to a third doctor.  After notice from the seafarer, the company must then commence the process of choosing the third doctor.  There was no such request made by the seafarer and as the procedure was not availed, the Court declared that the company-designated doctor's certification is the final determination that must prevail.
 
The CBA is not applicable as the condition did not arise from an accident
 
The Court noted that to prove the “accident”, the seafarer presented his own statement as well as that of an un-notarized statement from an AB of the vessel attesting to the slipping and fall.  However, upon review of all the evidence of the parties, it was shown that the seafarer was experiencing back pains since two years ago. The report issued on-board as well as the medical reports of the company-designated physician and seafarer’s doctor failed to show that seafarer suffered from an accident.  The medical reports merely stated that the seafarer had back pains from two years ago which was aggravated when he was carrying heavy objects.  The Court held that carrying heavy objects cannot be considered as an accident and as such, the compensation is outside the coverage of the CBA and the POEA Contract will apply.
 
E. J. vs. Orient Line Philippines, Inc., Orient Navigation Corporation et. al., G.R. No. 225190, July 9, 2019, Second Division, Associate Justice Alfredo Benjamin Caguioa, ponente (Joseph Rebano and Saben Loyola of DelRosarioLaw handled for vessel interests)

Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
 
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Del Rosario & Del Rosario, a four-decades-old firm, is considered to be among the top shipping and maritime practices in the country. It has also built a formidable reputation in insurance and reinsurance, and has more than 30 lawyers, including 10 partners.” The Philippines Law Firm Awards 2018.

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