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Supreme Court rules that claim is premature if seafarer fails to give notice of intent to be assessed by a third doctor

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 8 August 2019 (Issue 2019/09)

 

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Supreme Court rules that claim is premature if seafarer fails to give notice of intent to be assessed by a third doctor
 
The seafarer was employed as Able Seaman on-board the ship.  During the seafarer’s employment, he suddenly felt pain in his lower back and abdomen while in the performance of his duty. He also experienced difficulty and pain when urinating. Seafarer was brought to a shore clinic where he was treated.  However, as the symptoms persisted, the seafarer was eventually repatriated for further medical management with the company-designated physicians.
 
The company-designated physicians diagnosed the seafarer with "Prostatitis rule out Urolithiasis."  After a series of treatment and examinations, the seafarer was declared fit.  The seafarer appeared to have then undergone a pre-employment medical examination (PEME) where he was advised to undergo further examination for his condition. Thereafter, the seafarer sought consultation with his chosen doctor who diagnosed him to be suffering with nephrolithiasis, diabetic nephropathy, osteoarthritis, lumbosacral spine radiculopathy, and benign positional vertigo. He was also assessed to be physically unfit to return to work as a seafarer.
 
Subsequently, the seafarer filed a complaint with the NLRC for payment of permanent disability compensation.  The Labor Arbiter, the NLRC and the Court of Appeals all upheld the claim for compensation relying on the findings of the seafarer’s personal physician.
 
Upon petition with the Supreme Court, the claim was denied for being premature.
 
The Supreme Court held that under the POEA Contract, when the seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work should be determined by the company-designated physician. However, if the physician appointed by the seafarer makes a finding contrary to that of the assessment of the company-designated physician, a third physician might be agreed upon jointly by the employer and the seafarer, and the third physician's decision would be final and binding on both parties. The Court emphasized that the non-observance of the requirement to have the conflicting assessments determined by a third physician would mean that the assessment of the company-designated physician prevails.
 
In this case, while the seafarer was not precluded from seeking a second medical opinion of his condition, the POEA Contract laid down the procedure to be followed when there is a disagreement between the assessments of the respective physicians of the parties.  The records do not indicate that the parties jointly sought the opinion of a third physician for the determination and assessment of the seafarer's disability or the absence thereof. The failure of the seafarer to give notice to the company of his intent to submit himself to a third physician for evaluation negated the need for the determination by a third physician. For this reason, the filing of the seafarer's claim for disability was premature.
 
The need for the evaluation of the seafarer's condition by the third physician arose after his physician declared him unfit for seafaring duties. He could not initiate his claim for disability solely on that basis. He should have instead set in motion the process of submitting himself to the assessment by the third physician by first serving the notice of his intent to do so on the company. There was no other way to validate his claim but this. Without the notice of intent to refer his case to the third physician, the company could not themselves initiate the referral. Moreover, such third physician, because he would resolve the conflict between the assessments, must be jointly chosen by the parties thereafter. Unless the seafarer served the notice of his intent, he could not then validly insist on an assessment different from that made by the company-designated physician.
 
Maersk Filipinas Crewing Inc.; and A.P. Moller A/S vs. E. A., G.R. No. 216795, April 1, 2019, First Division, Chief Justice Lucas Bersamin, ponente
 
Temporary suspension of crew change and shore leave of seafarers in Sudan
 
The POEA has issued Governing Board Resolution No. 7, Series of 2019 dated 18 July 2019 imposing a temporary suspension on the processing and deployment of newly hired workers, including crew change and shore leave of Filipino seafarers in Sudan.  The recommendation was made due to the unstable peace and order situation thereat and the current risky and uncertain state of land transport across the country. 
 
Firm News
 
The Maritime Law Association of the Philippines (MARLAW), led by its President, DelRosarioLaw Partner, Denise Luis B. Cabanos, spearheaded a very successful and well-attended forum on 19 July 2019 at the Philippine Diamond Hotel, with the theme “Raising Awareness on Developments in Maritime Law.” Distinguished resources speakers, including Past President of MARLAW and DelRosarioLaw Partner, Charles Jay Dela Cruz, shared their insightful views on pertinent and interesting issues in maritime law and practice.   This was attended by more than 200 participants, mainly from the manning industry. This was the biggest and most attended MARLAW forum in recent history.
 
DelRosarioLaw Senior Associate Julius A. Yano gave a series of lectures on the concept of archipelagic states under the 1982 United Nations Convention on the Law of the Sea. The lecture was given before members of the Philippine Bar as part of the Mandatory Continuing Legal Education program for Filipino lawyers.
 

 

Areas of Specialization: Shipping, Labour, Transport, Corporate, Mergers & Acquisitions, Insurance, Immigration, Litigation, Arbitration, Intellectual Property
 
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“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

 

 

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This publication aims to provide commentary on issues affecting the manning industry, analysis of recent cases and updates on legislation.  It is meant to be brief and is not intended to be legal advice.  To subscribe or for further information, please email This email address is being protected from spambots. You need JavaScript enabled to view it. .

 

 

 

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In view of a national holiday in the Philippines, our offices will be closed on Friday 1 November, to re-open on Monday 4 November.

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TheAsia Business Law Journal has named Managing Partners Arturo Del Rosario, Jr. and Ruben Del Rosario and Senior Partner Joseph Rebano as one of the Philippines Top 100 Lawyers in their recently published list.

The Top 100 list of lawyers can be accessed as follows:

https://www.vantageasia.com/asia-business-law-journal/Philippines-lawyers/#INTRODUCTION

 

DelRosarioLaw welcomes Ruben Jose G. Del Rosario Jr., as a Junior Associate of the firm. He is a 2011 Bachelor of Science in Management, Major in Legal Management graduate of Ateneo de Manila and a 2017 Bachelor of Laws graduate of San Beda College - Alabang.

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Partner Charles Dela Cruz spoke on "Nuances of Retirement Law in the Philippines" at the 2nd HR Compliance Conference held on September 25-26, 2018 at SMX Aura Convention in Bonifacio Global City.

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Partners Charles Dela Cruz and Herbert Tria spoke on “Current Crew Claims Handling Issues related to the Data Privacy Act” at the 7th Annual Magsaysay Shipping and Logistics’ Marine Insurance Seminar held on 21 September 2018 at Robert Hall, Times Plaza Building, Manila.

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DelRosarioLaw Senior Partner Charles Jay Dela Cruz was elected as member of the Board of Trustees of the Philippine Bar Association (PBA) for the term 2018-2019.

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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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