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Christmas Message

Dear Clients and Friends,
 
This year has been difficult.  Safety protocols, work from home and virtual conferences have become the norm.  We trust that all have now adjusted to this new normal.
 
Let us not let this crisis prevent us from celebrating Christmas and the New Year.  We should still strive to celebrate the holiday season as best we can.  And at the same time, extend help to those most in need.
 
We at Del Rosario have continued our yearly aid to the Tuloy Foundation Inc., the Church of the Poor Apostolate Inc., the St. James the Great Parish and the Sacred Heart Chapel in West Crame.  We have further extended assistance to a number of organizations and individuals who have been affected by the economic crises brought about by the pandemic.
 
As we look forward to our 44^th year, we extend to you and your family the best of the Christmas season and pray that the New Year 2021 will see an end to these challenging times. 
 
Del Rosario Law / Del Rosario Pandiphil
 
 
Passing the PEME does not preclude denial of claim based on concealment
 
Prior to his engagement as Fitter, seafarer underwent a pre-employment medical examination (PEME).  In his PEME, the seaman did not disclose any medical condition and was eventually declared fit to work.
 
While on-board the vessel, the seafarer complained of a dislocated left shoulder.  The seafarer was referred to a shore doctor and it was admitted therein that this was the seafarer’s third episode of shoulder dislocation.  He was advised to seek further examination to determine the extent of his injury.
 
Upon repatriation, further treatment was denied to the seafarer by the company as he concealed his medical condition during the PEME.  The seafarer then consulted with his own doctor who declared him permanently unfit to work.  This prompted the seafarer to file a claim for disability benefits against the company.
 
The Labor Arbiter, NLRC and the Court of Appeals all denied the claim based on the concealment of the seafarer.  The denial of the claim was further affirmed by the Supreme Court. 

The foreign doctor is not the company-designated physician
 
The seafarer argued that since there was no final and definite medical assessment issued by the company-designated physician, the findings of his chosen doctor should prevail.  The seafarer further argues that the findings of the foreign doctor cannot be considered as that of a company-designated physician.
 
The Supreme Court held that the foreign doctor is not considered as the company-designated physician.  The contract states that the company-designated physician should be the doctor who will diagnose the condition of the seafarer after repatriation.  The post-employment medical examination presumes that the company-designated physician will conduct a thorough, final and definitive assessment of the seafarer’s medical condition.  The foreign doctor’s diagnosis cannot be considered in compliance with the mentioned requirements. 
 
Since there was no assessment issued by the company-designated physician, the assessment of the seafarer’s chosen doctor will stand.  
 

Concealment committed by the seafarer
 
Notwithstanding, the Supreme Court held that the seafarer committed fraudulent concealment in his PEME which will disqualify him from disability benefits. 
The POEA Contract states that a seafarer who knowingly conceals a pre-existing medical illness or condition in the PEME shall be liable for misrepresentation and shall be disqualified from any compensation and benefits.
 
Here, the Court noted that the seafarer had two previous incidents where he dislocated his shoulder.  Noting that this was a recurring medical condition, he should have disclosed this during the PEME.
 
The seafarer argued that since he was made to undergo a PEME, the failure to discover his shoulder injury during the examination precludes the company from rejecting his compensation claim.  This was debunked by the Court considering that PEMEs are not exploratory in nature and employers are not burdened to discover any and all pre-existing medical condition of the seafarer during its conduct.  PEMEs are only summary examinations and they only determine whether seafarers are fit to work and does not reflect a comprehensive, in-depth description of the health of an applicant.  This is precisely why the POEA Contract mandates the seafarer to disclose his medical history during the PEME.
 
J. C. vs. Status Maritime Corporation, Beks Demi Isletmeciligi VE Ticaret A.S. and/or L. A., G.R. No. 238933, November 25, 2020, Third Division, Associate Justice Marvic M.V.F. Leonen, ponente (Attys. Denise Cabanos and David Valencia of DelRosarioLaw handled for vessel interests).

Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
 
2018 AsiaLaw Profiles: Outstanding in Shipping, Maritime & Aviation; Recommended in Dispute Resolution & Litigation, Intellectual Property, Labour & Employment

“Del Rosario & Del Rosario has the strongest shipping practice in the Philippines. They definitely deserves the top ranking.” AsiaLaw Profiles 2018

“We rely on them when there’s a problem. We can trust them. And they can deliver the service required.” The Legal 500 2018

“For almost four decades, DelRosarioLaw has led in the shipping and transport practice in the Philippines by assisting stakeholders in fostering institutional changes to ensure the continued viability of the local shipping and manning sectors. This enduring reputation has made the firm’s opinion in major maritime policies of the country most sought after.” Chambers Asia-Pacific 2018

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.