Del Rosario Pandiphil Inc.

Shipping and the Law

Various decisions on Filipino Crew Claims

By: Ruben Del Rosario, Managing Partner, Del Rosario & Del Rosario, September 8, 2005

Court disallows benefits to seafarer with pre-existing diabetes milletus

Seafarer denied he had diabetes milletus in his pre-employment medical examination. During said examination, he refused to remove his socks for his electrocardiogram. He was found fit to work on December 9, 1998. On December 28, 1998, or barely a month from his boarding the vessel, he could not walk properly as right foot was swollen. He refused medication as he had brought with him medicines from Manila. His condition worsened and he was repatriated and found to be suffering severely from gangrene on the right foot, diabetes milletus and hematuria.

The Court of Appeals denied payment of disability benefits as under the POEA employment contract, a seafarer who knowingly conceals and does not disclose a past medical condition is disqualified from any compensation and benefits. The Court could not imagine how a seafarer can acquire diabetes/gangrene in less than a month on board vessel. His illness was therefore pre-existing and he is not entitled to any benefits.

Talledo vs. NLRC, et. al., CA-G.R. SP. No. 86049, May 23, 2005 (Justice Perlita Tria Tirona, Fourth Division, Court of Appeals)

Note: Attys. Pamela Coseip-Abarico and Herbert Tria of Del Rosario & Del Rosario handled case for vessel interests.

Seafarer must not only suffer injury but must be disabled in order to receive benefits

Seafarer suffered injury on his ear known as Left Otitis. He was treated in Singapore and Japan and in Manila after his repatriation. After seven months of treatment, the company doctor declared him fit to work. Seafarer demanded payment of disability benefits claiming he suffered illness or injury in his ear during the course of his employment and thus must be compensated.

The NLRC ruled that there can be no payment of disability benefits. In addition to a seafarer suffering illness or injury during the course of employment, he must show that such illness or injury rendered him disabled. There is no evidence of such disability. The contrary opinion of seafarer’s doctor is not enough to overthrow the fitness declaration of the company physician who treated seafarer for seven months.

Naul vs. Magsaysay Maritime, et. al., NLRC OFW CASE (M) 00-08-1994-00, NLRC NCR CA 036222-03, April 20, 2005

Attys. Machere Reyes and Joseph Rebano of Del Rosario & Del Rosario handled for vessel interests.

Cause of death must be the same as cause of repatriation in order for death to be compensable

At issue is whether death benefits are to be paid to a seafarer. Seafarer fell ill on board the vessel and was disembarked and treated for pneumonia at the disembarkation port. He was repatriated to Manila where his pneumonia was treated by the company doctor for two weeks. He was then declared fit to work. Some three months later he died. Per death certificate, his immediate causes of death were anoxia, astmaticus and hypertension.

The Labor Arbiter and the NLRC rejected payment of death benefits. The NLRC ruled that the cause of death of “asthma” and “hypertension” are totally different from pneumonia, the disease for which seafarer was repatriated. It is apparent from the records that the seafarer suffered his asthma and hypertension three months after he was treated for pneumonia and declared fit to work by his attending doctor. Further, it cannot be said that allergens were present in seafarer’s working conditions as there was no sensitivity test or provocative test conducted much less any showing that he tested positive therefore. Patently, seafarer’s “causes of death which are anoxia, status astmaticus and hypertension, are neither related to his work or to his previously treated illness of pneumonia, hence, his resulting death is not compensable.

Spouses Acoba vs. Philippine Transworld Shipping Corp. et. al., NLRC CA NO. 036225-03, NLRC NCR 02-05-1278-00, May 31, 2005

Attys. Hansel Tillmann and Herbert Tria of Del Rosario & Del Rosario handled for vessel interests.

NLRC upholds findings of company doctor as against seafarer’s doctor

At issue is whether it is the company doctor or seafarer’s own doctor who should be believed by the NLRC. The NLRC ruled that it should be the company doctor for the following reasons:

1. Section 20, B2 of the POEA Standard Employment Contract is explicit that the company-designated physician is the one who is to determine the fitness or disability of the seaman. This was upheld by the Supreme Court in German Marine Agencies Inc. vs. NLRC (GR No.l 142049, January 21, 2001) when it held that “in order to claim disability under the Standard Employment Contract, it is the company designated physician who must proclaim that the seaman suffered permanent disability, whether total or partial, due to injury or illness, during the term of the contract.” Seafarer was examined, treated and diagnosed by Dr. Lim, the company designated physician for almost six months and was finally declared fit to work.

2. Between the company designated physician who treated seaman and his own personal doctor, it should be the company designated physician who should be upheld absent any showing of bias or actions contrary to The Supreme Court ruled in Cuales vs. NLRC, 121 SCRA 812 that the certification of a doctor who actually performed surgery prevails over another who merely examined the employee’s medical record.”

Maestre vs. Magsaysay, et. al., NLRC NCR 02-09-2413-00 (CA No. 040236-04), June 30, 2005

Attys. Jerome Pampolina and Herbert Tria of Del Rosario & Del Rosario handled for vessel interests.

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Ruben T. Del Rosario is managing partner of Del Rosario & Del Rosario. He is former president of the Maritime Law Association of the Philippines and is currently president of the Philippine Maritime Voluntary Arbitrators Association. Del Rosario is correspondent of several P & I Clubs.

For complete copy of the decision or for further information, please call 63 2 810 1791 or fax 63 2 817 1740 or email ruben.delrosario@delrosario-pandiphil.com

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This publication is only intended to summarize general points of interest in the material discussed herein. It is not intended to be exhaustive, accurate or to be legal advice with respect to the matters discussed.

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