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Supreme Court denies claim as illness congenital disorder (Cavernoma) and thus, not work-related

Philippine Shipping Update – Manning Industry

Supreme Court denies claim as illness congenital disorder (Cavernoma) and thus, not work-related

Issuance and Renewal of Licenses of Recruitment Agencies for Overseas Employment Now Needs Approval by the Department of Labor and Employment (DOLE)
 
Department of Labor and Employment (DOLE) Lifts Ban on Deployment of Filipino workers to Qatar

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee; Petition Filed Against Ordinance

Security at sea ports now being handled by the Philippine Coast Guard


By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  June 21, 2017 (Issue 2017/10)

Supreme Court denies claim as illness congenital disorder (Cavernoma) and thus, not work-related

The crew was engaged by the company as Security Guard.  Prior to his deployment, the crew underwent a Pre-employment Medical Examination (PEME) and was pronounced fit to work.  While on board the vessel, the crew suffered from difficulty of breathing and had a brief seizure attack causing him to fall from his bed. He was immediately treated by the ship doctor.
 
When the ship docked at her next port the crew was brought to a hospital where he was immediately admitted. He was confined at the hospital for almost two weeks.  It was found that the crew was suffering from "right parietal hemorrhage" of the brain and was given medications to prevent seizures.
 
Eventually, the crew was repatriated and was referred to the company-designated doctors for further treatment, evaluation and management.  After a series of examinations, the crew was initially diagnosed as suffering from "arterio-venous malformation, right parietal" and was found to have "intracerebral hemorrhage over the superior parietal at right due to small arterio venous malformation or angioma."
 
The company-designated doctor issued their opinions that the crew was suffering from Cavernoma and the illness is a congenital disorder and not work-related.  Another company-designated doctor issued an opinion that the illness is idiopathic in character and is not work-related.
 
The crew than filed a Complaint for permanent and total disability benefits, damages and attorney's fees. He alleged that he is entitled to maximum disability compensation and further alleged that even after all the examinations, he is still suffering from the illnesses and is disabled up to the present.  He likewise presented the medical certificate issued by his personal doctor stating that his illness is work-related.
 
The Labor Arbiter dismissed the complaint which was affirmed by the NLRC.  They held that the illness was proven to be not work-related based on the opinions of the two company designated doctors that it was congenital and idiopathic in etiology.
 
However, the Court of Appeals sustained the claim of the crew and awarded disability benefits.  It held that the certifications of the two company-designated doctors were conflicting.  The appellate court noted that one doctor opined that the etiology of the illness is idiopathic which means that the cause is unknown.  Since the cause is unknown, then it would be difficult to prove with certainty that it is not work-related.  As such, the company was not able to overcome the presumption of work-relation under the POEA Contract.
 
Upon further petition to the Supreme Court, the claim was again dismissed.
 
Disputable presumption of work-relation must still be coupled with substantial evidence that illness is work-related
 
The illness of the crew, cavernoma, is not included in the list of occupational diseases under the POEA Contract. However, the POEA Contract provides that those illnesses not listed are disputably presumed as work-related. While the law recognizes that an illness may be disputably presumed to be work-related, the seafarer or the claimant must still show a reasonable connection between the nature of work on board the vessel and the illness contracted or aggravated.   Such disputable presumption does not allow him to just sit down and wait for the company to present evidence to overcome the disputable presumption of work-relatedness of the illness. He still has to substantiate his claim in order to be entitled to disability compensation. He has to prove that the illness he suffered was work-related and that it must have existed during the term of his employment contract. He cannot simply argue that the burden of proving otherwise belongs to company.
 
Here, assuming that cavernoma is not idiopathic, the crew did not adduce proof to show a reasonable connection between his work as Security Guard and his caverrnoma. There was no showing how the demands and nature of his job vis-a-vis the ship's working conditions increased the risk of contracting cavernoma.
 
Company-designated doctors vs. Claimants’ personal doctor
 
The conflicting findings of the company's doctor and the seafarer's physician often stir suits for disability compensation. As an extrajudicial measure of settling their differences, the POEA-SEC gives the parties the option of agreeing jointly on a third doctor whose assessment shall break the impasse and shall be the final and binding diagnosis.  In the instant case, the crew did not seek the opinion of a third doctor. Based on jurisprudence, the findings of the company-designated physician prevail in cases where the seafarer did not observe the third-doctor referral provision in the POEA-SEC.
 
The Court further sustained the findings of the company-designated physicians as they were substantiated by medical tests.   The Court noted that the company-designated physicians monitored the crew’s case from the beginning. They were the ones who referred the crew to the proper medical specialists whose medical results are not essentially disputed. The company-designated physicians monitored the crew's case and issued the certifications on the basis of the medical records available and the results obtained. From the time of his repatriation, the crew had been under the care of the company-designated physicians, and the said physicians should be considered to be fully familiar with the illness of the crew.
 
Moreover, the Court noted that the medical certificate issued by the crew’s personal doctor was not based on results from medical tests and procedures. On the other hand, the company-designated physicians were familiar with the crew's medical history and condition, thus, their medical opinion on whether the illness is work-aggravated/-related deserve more credence as opposed to the unsupported conclusions of the crew’s personal doctor.
 
PEME meant only to determine fitness to work and not actual medical condition
 
The crew argued that since he was given a clean bill of health during the PEME, any illness he has now was suffered because of his employment.  This argument was shot down by the Court.  A PEME is not exploratory in nature and cannot be relied upon to arrive at a seafarer's true state of health.  While a PEME may reveal enough for the company to decide whether a seafarer is fit for overseas employment, it may not be relied upon to inform the company of a seafarer's true state of health. The PEME could not have divulged respondent's illness considering that the examinations were not exploratory.  For the crew to claim that the issuance of a clean bill of health to a seafarer after a PEME means that his illness was acquired during the seafarers employment is a non sequitur .
 
C.F. Sharp Crew Management, Inc., Norwegian cruise Line, Ltd. and/or Mr. Juan Jose Rocha v. Rhudel Castillo, G.R. No. 208215, April 19, 2017, Second Division, Associate Justice Diosdado Peralta, Ponente.  (Attys. Florencio Aquino and Lovereal Ocampo-Carullo of Del Rosario & Del Rosario handled for vessels interests)

Author’s Note: In Leonis Navigation Co., Inc. vs. Obrero (G.R. No. 192754, September 7, 2016), the Supreme Court clarified that the third doctor procedure does not apply where the issue is the determination of work-relation of an illness.  The above case of C.F. Sharp Crew Management, Inc. vs. Castillo appears to be a deviation from said clarification as the Court still used the third doctor procedure as a ground for upholding the findings of the company-designated doctor despite the fact that what was in question was the work-relation of the crew’s illness.
 
 
Issuance and Renewal of Licenses of Recruitment Agencies for Overseas Employment Would Now Need Approval by the DOLE
 
Secretary of Labor, Silvestre Bello III, has recalled a 1998 directive by the Department of Labor and Employment that authorized the POEA Administrator to act on matters governing overseas employment.
 
In Administrative Order No. 241 Series of 2017, the confirmation of the issuance and renewal of licenses of recruitment agencies and other matters governing overseas employment will now have to pass to the labor secretary for approval.
 
The said administrative order states that all processed applications on the issuance and renewal of licenses; authorities to engage in the recruitment and placement of workers for overseas employment; the grant of exemption from the ban on direct hiring; and the grant exemptions from the age requirements for overseas workers shall be forwarded to the Office of the Secretary for approval or denial of the applications.  Nevertheless, all applications relative to the foregoing shall still be filed with and processed by the POEA in accordance with existing rules and regulations.

The said administrative order was issued to ensure that only the operation of legitimate and responsible recruitment agencies are allowed to safeguard the welfare and security of overseas Filipino workers and their families and to develop and effectively implement programs on the deployment of migrant workers.
 

DOLE Lifts Ban on Deployment of Filipino Workers to Qatar
 
Due to the severance of the diplomatic ties by several Middle Eastern nations with Qatar, the Department of Labor and Employment (DOLE) suspended the deployment of all Filipino workers to Doha last 7 June 2017.  This move was to assess the situation and the impact that the diplomatic row would have on the nearly 240,000 Filipino workers in Qatar.
 
The POEA clarified that said ban had no effect on Filipino seafarers as their employment is sea-based.  Nevertheless, the deployment ban has been lifted by the DOLE effective 15 June 2017 after re-assessing the situation in the gulf state.
 

Update: Zambales / Provincial Coast Watch Environmental Monitoring System User Fee; Petition Filed Against Ordinance

A Petition for Declaratory Reief was filed by the Filipino Shipowners Association (FSA) and the Association of International Shipping Lines (AISL) to question the validity of Provincial Ordinance No. 2016-68 issued by the Province of Zambales.  The Petition is currently filed with the Regional Trial Court of Manila where summons have now been served on the province and is required to file an answer.

 
Security at sea ports now being handled by the Philippine Coast Guard

Department of Transportation Secretary Arthur Tugade has transferred security operations in all public and private sea ports in the country to the Philippine Coast Guard.  This is in response to possible threats that sea ports may be targets of terror attacks by terrorists/militants, both local and foreign.  The Philippine Coast Guard may now cause the arrest and detention of people, cargo and vessels violating Philippine laws and can file the appropriate charges in court.

Port security was previously under the control of the Maritime Industry Authority (MARINA) and Philippine Ports Authority (PPA).

The order took effect 5 June 2017 and will initially remain in effect until 22 July 2017 unless further extended.

The inspections that will be conducted by the Philippine Coast Guard may be cause for some delays in the estimated arrival time of ships.
 


 
 

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Del Rosario & Del Rosario Partner Joseph Rebano was re-elected as Director of the Philippine Bar Association for the year 2017-2018. 

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Arturo T. Del Rosario Jr. elected IPAP President for 2015 - 2017

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Managing partner Arturo del Rosario led the Philippine delegations in two recently concluded Intellectual Property (IP) Conventions.  As President of the Intellectual Property Association of the Philippines (IPAP), Arturo with 12 Philippine delegates, participated in the AIPPI 2017 Sydney World Congress on 13 - 17 October 2017. 

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Del Rosario & Del Rosario Law offices welcome the addition of Meighan E. Sembrano as one of its Junior Associates.

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Del Rosario Partner Saben Loyola was a speaker at the Propeller Club of Manila last 26 July 2017.

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Del Rosario Pandiphil medical consultant, Dr. Edgardo Del Rosario, through the Japan P&I Club, is a contributor to the Mariner’s Digest of the Japan Shipping Exchange, Inc.

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DelRosarioLaw Partner Florencio Aquino and Senior Associate Aldrich Del Rosario conducted a seminar for V.Ships Crew/Pacific Ocean Manning, Inc. last 12 May 2017. 

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Downloads

  • IRR Seafarer's Protection Act
  • Seafarers Protection Act
  • ORDINANCE No. 28 Series of 2015 Zambales, Philippines
  • NLRC MEMO on 3rd Doctor
  • NLRC Rules of Procedure 2011
  • Standard Terms and Conditions of Del Rosario Law
  • POEA SEC - 2010 Amendments
  • POEA Memorandum Circular No. 10 Series of 2010
  • Governing Board Resolution No. 09 Series of 2010

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