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Seafarer who was repatriated because of the termination of his employment denied disability benefits; sebaceous cyst not proven to be work-related

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc.,  September 11, 2017 (Issue 2017/15)

Seafarer who was repatriated because of the termination of his employment denied disability benefits; sebaceous cyst not proven to be work-related
 

The seafarer was engaged to work as Demi Chef on-board a passenger cruise vessel. Just two (2) weeks into his employment, the seafarer claimed that he suddenly slipped on a metal stairway and fell down, hitting his abdomen and chest on a metal pipe.  He was brought to the ship doctor and was diagnosed to have a "sebaceous cyst to the right of the umbilicus." The next day, the seafarer was treated at a shore medical facility and under a local anesthesia, his cyst was removed, and the lesion was closed with three (3) stitches.  After two (2) months, the engagement of the seafarer was terminated in accordance with the probationary employment clause in the employment agreement and he was immediately repatriated.
 
The seafarer further argued that he requested for medical referral upon returning to the company’s office but was denied because his condition was not work-related.  Due to persistent symptoms, the seafarer sought medical examination with his personal doctor and was certified to be permanently unfit for sea service.
 
The seafarer argued that he did not finish his employment with the company because of his unwanted medical condition and demanded payment of disability benefits.  Subsequently, a complaint was filed with the NLRC.
 
The Labor Arbiter awarded the seafarer with partial disability as the medical condition occurred during the term of employment.  On appeal, the NLRC dismissed the claim as there was no showing that the condition was work-related and that the same was just a minor one which was already resolved when he underwent removal of the cyst.  The decision of the NLRC was affirmed by the Court of Appeals.
 
Upon further proceedings before the Supreme Court, the denial of the claim was affirmed.
 
Seafarer was not medically repatriated
 
The Court noted that the employment of the seafarer was terminated in accordance with the probationary employment clause under the employment agreement.  The allegation of the seafarer that his employment was terminated because of his medical condition is undermined by the fact that after he underwent excision of the cyst, he was able to work for 2 more months without any complaints whatsoever.  Moreover, the medical report furnished by the shore doctor who conducted the excision of the cyst would show that only a minor operation was done and after the excision, only three stitches were required to be done and seafarer was immediately discharged back to the ship to return to work.
 

Sebaceous cyst is not work-related
 
The seafarer insists that his sebaceous cyst was work-related and compensable since the risk of acquiring it increased due to his working conditions on board.
 
The Court held that a sebaceous cyst is not included in the list of occupational disease under the POEA Contract.  However, the contract expressly provides that those illnesses not listed are disputably presumed as work-related. The disputable presumption implies that the non-inclusion in the list of compensable diseases/illnesses does not translate to an absolute exclusion from disability benefits. Similarly, the disputable presumption does not signify an automatic grant of compensation and/or benefits claim.  There is still a need for the claimant to establish, through substantial evidence, that his illness is work-related which in this case, the seafarer failed to establish. The seafarer cannot solely rely on the disputable presumption clause in the contract as he still needs to establish with substantial evidence wok-relation of his condition.
 
The seafarer has not enumerated either the scope of his job or his regular tasks as a Demi Chef that would supposedly show the correlation of his employment to the development of his cyst. Similarly, he failed to provide an overview of significant working conditions that might have possibly contributed to the acquisition or aggravation of his illness. Instead, he merely made sweeping assertions about it for which the claim should be denied.
 
Mario Madridejos vs. NYK-Fil Shipmanagement, Inc., G.R. No. 204262, June 7, 2017, Second Division, Associate Justice Marvic Loenen, ponente
 
POEA recognizes appointment of Principal’s Representatives at office of manning agency
 
The POEA issued Memorandum Circular No. 08 series of 2017 (MC 08-17) last 29 August 2017 implementing Section 99 of the 2016 Revised Rules and Regulation Governing the Recruitment and Employment of Seafarers.  MC 08-17 will take effect on 16 September 2017 after its publication in a newspaper of general circulation.
 
The principal’s representative could either be Filipino or foreigner and is subject to prior approval by the POEA’s Pre-Employment Services Office (PSO). Current principal’s representatives may continue to function in accordance with the limitations set forth in the said MC but they have 30 days from its effectivity to secure a PSO Letter of Acknowledgment (LOA)
 
A principal/employer may appoint representatives to up to three (3) manning agencies. The principal/employer will continue to be the representative’s employer and the representative cannot receive any compensation or benefit from the manning agency.
 
Generally, the duties and responsibilities of the representative involve protection of the principal/employer and the seafarers’ interests in the Philippines but he/she can only perform his functions within the premises of the manning agency. The representative cannot be involved in the management or day to day operations of the manning agency which is considered a prohibited act under RA 10022 or the Amended Migrant Workers Act.
 
The assignment of the representative may be revoked at any time by the principal/employer or by the POEA for violation of the law. The manning agency shall report to the PSO the withdrawal or revocation of the representative by the principal/employer within 72 hours from such action.
 
This is the most comprehensive circular to date addressing the presence of a Principal’s representative in a Philippine manning agency.
 
POEA issues Memorandum Circular No. 07 Series of 2017 on Financial Security for Foreign Flag Ships
 
The POEA has issued Memorandum Circular No. 07 Series of 2017 (MC) regarding compliance with amendments to the Code implementing Regulations 2.5 and 4.2 and appendices of the Maritime Labor Convention, 2006 on Financial Security for Foreign Flag Ships.  Said MC would take effect on 16 September 2017.
 
The amendments mandate the provision of an expeditious and effective financial security system to assist seafarers in the event of their abandonment and to assure compensation for contractual claims in the event of the death or long-term disability of seafarers due to occupational injury, illness or hazard.
 
In connection with the above, licensed manning agencies requesting for enrollment of foreign flag ship shall be required to submit copy/copies  of the certificate of financial security or other documentary evidence of financial security covering abandonment and compensation for contractual claims, respectively, issued to the shipowners of the ship.
 
For the existing enrolled vessels, the licensed manning agencies shall submit within 60 days from 16 September 2017, a copy/copies of the mentioned certificates of financial security or other documentary evidence.  Otherwise, the processing of request for crewing for the subject vessel/s without the said valid certificates shall not be allowed.
 
For new building vessels, the licensed manning agency shall either issue:
 
a. An Affidavit of Undertaking to submit to the POEA a copy/copies of the valid certificates of financial security or other document provided by the shipowners or principals, or P&I of the vessel within 60 days after vessel’s delivery and a corresponding Affidavit of Assumption of Responsibility for the deployed seafarers in relation to the items required to be covered by the financial security, shall likewise be issued by the manning agency, or
 
b. A copy of the valid certificates of financial security or other documents.

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  • 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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