PHILIPPINE SHIPPING UPDATE – MANNING INDUSTRY

BY: RUBEN DEL ROSARIO, PRESIDENT, DEL ROSARIO PANDIPHIL INC., 6 MARCH 2021 (ISSUE 2021/03)

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Seafarer’s non-compliance with the mandatory reportorial requirement fatal to his claim

Seafarer was hired as Able-Bodied Seaman under an approved POEA Contract.  During employment, the seafarer experienced difficulty in breathing and suffocation. He later became dizzy and was assisted by his crewmates and brought to his cabin for the administration of first aid.  The shore doctor diagnosed him with asthma and repatriation was advised.  It was also noted by the ship doctor that seafarer had a previous history of asthma.
 
The seafarer did not report to the company upon his repatriation and instead went home to his province.  The company called the seafarer by telephone but the latter refused to follow the required procedure and instructions for treatment and evaluation of his alleged condition. The company also sent out a letter to the seafarer reminding him of their instruction to report to the company-designated physician for evaluation of his health condition.  The company was again able to contact the seafarer over the phone who confirmed receipt of the letter and that he was no longer reporting to the local agents and company-designated physician as he opted to engage the services of a personal physician due to alleged numbness of half of his body.
 
The seafarer then filed a complaint for disability benefits. He alleged that in the performance of his duties and responsibilities on board the vessel, he was always exposed to the harsh conditions particularly the toxic environment in the engine room usually filled with pollutants and intoxicating chemicals. He was also under severe stress while being away from his family and suffered regular fatigue due to long hours of work and various duties.  After filing the complaint, he consulted his own doctor and obtained a medical certificate stating that he was suffering from Hypertensive Arteriosclerotic Cardiovascular Disease and Bronchial Asthma and that he is already permanently disabled.
 
The Labor Arbiter dismissed the complaint of the seafarer as it was not proven that the illness complained of is work-related.  Also, the seafarer failed to comply with the mandatory reportorial requirement under the POEA Contract and that the complaint was premature.  Upon appeal, the NLRC granted the claim of the seafarer and awarded to him full disability benefits.  Upon petition, the Court of Appeals reinstated the ruling of the Labor Arbiter.  The claim was eventually denied upon further petition to the Supreme Court.

Complaint was premature
 
The Court noted that at the time of the filing of the complaint, the seafarer did not attach any medical certificate showing his illnesses. What was evident on record is that seafarer managed to submit a medical certificate issued by his personal doctor only two (2) months after the complaint was filed. Evidently, seafarer had no cause of action when he filed his complaint as he was unaware of his disability at the time of the filing.  Thus, absent any disability grading at the time of filing of the complaint, seafarer has no ground for disability claims as he did not have any evidence to support it.

Non-compliance with the three day rule
 
The POEA Contract states that the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. In the course of the treatment, the seafarer shall also report regularly to the company-designated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim benefits.
 
While the seafarer alleged that he reported to the respondents, he failed to provide any substantial evidence that he submitted himself to a company-designated physician within three (3) working days after his repatriation in the Philippines.   Time and again, it has been held that whoever claims entitlement to the benefits as provided by law should establish his or her right thereto by substantial evidence. Substantial evidence is defined as such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. Upon evaluation of the records of this case, seafarer’s bare allegation that he submitted himself to the company within three (3) days from his repatriation falls short of this standard.

Failure to prove work-relation
 
The Court held that for disability to be compensable under the POEA Contract, two elements must concur: ( l) the injury or illness must be work-related; and (2) the  work-related injury or illness must have existed during the term of the seafarer's employment contract.  In quoting with approval the ruling of the Court of Appeals, the Supreme Court held that the burden of proving the causal link between a claimant's work and the ailment suffered rests on the claimant's shoulder. The claimant must show, at least, by substantial evidence that the development of the disease was brought about largely by the conditions present in the nature of the job. What the law requires is a reasonable work connection and not a direct causal relation. Thus, a claimant must submit such proof as would constitute a reasonable basis for concluding either that the conditions of employment of the claimant caused the ailment or that such working conditions had aggravated the risk of contracting· that ailment. Incidentally, the 2010 amended PO EA Contract defines work-related illness as any sickness which resulted from an occupational disease listed under Section 32-A subject to the conditions found therein.
 
A careful perusal of this case shows that seafarer failed to adduce concrete and sufficient evidence to prove that his illness is work-related. The permanent disability grading issued by his personal doctor cannot be considered as an effective assessment for purposes of the POEA Contract. It is a well-settled doctrine that if doubt exists between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the employee. However, we cannot put the burden on the employer when the record is bereft of any evidence showing any violation on their part.
 
H. G. vs. Bright Maritime Corporation, Clemko Shipmanagement S.A. and/or Desiree Sillar, G.R. No. 239015, September 14, 2020, Second Division, Associate Justice Edgardo Delos Santos, ponente (Attys. Catherine Mangahas and Hazel Guansing of DRLaw handled for vessel interests)
 
 
Firm News
 
Del Rosario & Del Rosario and Del Rosario Pandiphil, Inc. proudly announces the promotions of their lawyers and claims handlers.
 
Del Rosario & Del Rosario
 
Managing Associates
 
Jerome T. Pampolina is a Bachelor of Arts, Major in Economics graduate of Ateneo de Manila University (Fr. McPhelan Awardee and Best Thesis Awardee) and a  Bachelor of Laws graduate from the University of the Philippines, College of Law. He has been a constant resource speaker at various industry conferences relating to crew claims.  He is a member of the Philippine Bar Association. He is a member of the Maritime Law Association of the Philippines.
 
Richard P. Sanchez is a Bachelor of Arts, Major in Philosophy and Human Resource Development graduate of San Beda College Manila (Awardee of Academic  Distinction and Best Thesis) and a Bachelor of Laws graduate of San Beda College of Law, Manila.  He is a member of the Philippine Bar Association. He is currently the Vice President of Programs of the Maritime Law Association of the Philippines.
 
Julius A. Yano obtained his first law degree from the University of the Philippines-College of Law. In 2016 he obtained his Master of Laws degree with Distinction in International Maritime Law from the IMO-International Maritime Law Institute (IMLI) in Malta. He likewise participated in the Summer Academy of the International Foundation for the Law of the Sea in Hamburg, Germany. For the academic year 2017-18 he returned to IMLI as the Nippon Foundation Lecturer in International Maritime Security Law.
 
Among the organizations in which he is active are the Maritime Law Association of the Philippines of which he is the Public Relations Officer, the Institute for Maritime and Ocean Affairs and the ALMA Maritime Group. He is a member of the Philippine Bar Association. He is a regular contributor in various fora on maritime law and has given lectures and written papers on the subject.
 
Senior Associates:
 
Hazel Ritz D. Guansing  is a 2011 Bachelor of Arts Major in Philosophy graduate of University of Santo Tomas Manila and a 2015 Bachelor of Laws graduate of San Beda College of Law, Manila. She is a member of the Philippine Bar Association.
 
Jonathan C. Vinarao, is a 2010 Bachelor of Science in Accountancy graduate of University of Santo Tomas Manila and a 2015 Bachelor of Laws graduate of San Beda College of Law Manila.  He is also a Certified Public Accountant. He is a member of the Philippine Bar Association.
 
Cresta Amor R. Macalalad is a 2011 Bachelor of Arts in Political Science graduate of UP and a 2015 Bachelor of Law, College of Law of San Beda, Manila. She is a member of the Philippine Bar Association.
 
Ma. Kristine Gay M. Cengca is a 2009 Bachelor of Science in Political Science graduate of UP Manila and a 2015 Juris Doctor, College of Law from University of the Philippines, Diliman.  She was employed by Del Rosario Pandiphil for more than three years as  Junior Claims Executive from 2009 to 2013. She is a member of the Philippine Bar Association.
 
 
Del Rosario Pandiphil, Inc.
 
Senior Claims Executives:
 
Razelle España is a graduate of Polytechnic University of the Philippines, Manila, Cum Laude, with a degree in Bachelor of Political Science, major in International Relations. She also has an Academic Completion Certificate, Masters in Risk and Insurance Management.  She has currently passed the P&I Qualification for Module on The Shipping Business under The International Group of P&I Clubs.
 
Shirley Perez is a graduate of Polytechnic University of the Philippines, Cavite with a degree in Bachelor of Secondary Education, major in Mathematics.       
 
Junior Claims Executives:
 
Kia G. Rodriguez is a graduate of Manila Central University with a degree in Bachelor of Science in Nursing.  She is also a Registered Nurse.
 
Luzviminda F. Ramiso is a graduate of Polytechnic University of the Philippines, Taguig with a degree in Bachelor of Science in Applied Mathematics, major in Actuarial Mathematics.
 
Congratulations to all for a well-deserved recognition and we wish you all the best in your new positions.
 

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Areas of Specialization:  Labour & personal injury, litigation and dispute resolution, corporate and commercial, shipping and admiralty, intellectual property, cargo claims and charter party, transport, insurance and reinsurance, arbitration and ADR, immigration.
 
 “‘Outstanding’ shipping boutique Del Rosario & Del Rosario is regularly sought out by the international group of P&I clubs as well as insurance companies and cruise lines. The firm has expertise in all aspects of shipping matters including labour, personal injury, vessel arrest, collisions, salvage, oil pollution, damage of cargoes, bunker claims, protection and indemnity, and ship finance. Its notable IP group has also been engaged by global giants such as Facebook, Instagram, LinkedIn and Sony”. 2021 AsiaLaw Profile.
 
“Specialising in maritime law, Del Rosario & Del Rosario is best known for acting for multinational clients in disputes relating to oil pollution, damaged cargo, salvage and vessel arrest. The group also has an extensive labour practice which is active in a full range of disputes involving Filipino seafarers. Del Rosario advise a variety of noteworthy clients, including shipping companies, insurers and P&I clubs.” 2021 Legal 500 Asia Pacific.