Introduction
It is a fact of life that life on board a ship means hard work, at times in difficult conditions, as a result crew will have injuries and will suffer from illnesses, and a lot can be done to mitigate against these risks.
Key advice
- good training to ensure crew stay safe and look after their health
- diligent PEME testing prior to engaging a crewman
- continued training and education while on board
- strong shore side support to ensure good on board discipline and following of procedures
- prompt response to crew injuries and illnesses
- appropriate follow up and after incident care
Recent Philippines supreme court decisions
In 2013, it was estimated that there are more than 460,000 Filipino seafarers and there may be more Filipinos that are employed as seaman than any other nationality. Said another way, about every one out of five seamen in the world is estimated to be a Filipino, making the Philippines one of the primary sources of seamen in the global shipping industry. As a result of this, the Philippines Supreme Court frequently rules on important crew claims that affect the way in which we are able to handle crew claims.
The most important decision is the 120/ 240 day ruling by the Supreme Court. A short summary of this decision is provided below as it is applied in all subsequent crew cases in the Philippines and thus crucial to understand.
The 120/ 240 day ruling
In 2005, the Supreme Court found that if a Seafarer was unable to work for more than 120 days due to his disability or because he was still receiving medical treatment, he would be deemed permanently and totally disabled. This meant that the seafarer would automatically be entitled to full disability benefits pursuant to the POEA (The Philippine Overseas Employment Administration) and CBA (collective bargaining agreement). Therefore, in case of injury or illness, the seafarer was entitled to sick wages for 120 days and when he reached or exceeded the 120 day period he was automatically entitled to 100% disability compensation.
In 2008, the Supreme Court modified the 120 day decision and extended the period of treatment to 240 days. Now if a seafarer exceeded a period of 240 days and the Company designated physician (CDP) had not declared him "fit for work" within this time period and he still required medical treatment, he was deemed to be permanently and totally disabled and entitled to 100% disability compensation ("Vergara doctrine"). The first 240 day decision is summarized below:
Jesus Vergara vs. Hammonia Maritime Services, Inc. and Atlantic Marine Ltd.G.R. No. 172933, October 6, 2008, Second Division.
Facts
- The seafarer was repatriated due to an eye problem.
- After undergoing the required treatment, the company doctor declared the seafarer fit to resume further sea duty.
- The seafarer's private doctors disagreed and gave the opinion that seafarer was not fit to work as a pumpman be cause the job could precipitate the resurgence of his former condition.
Supreme court decision
The Supreme Court held that a temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability. In the instant case, the company-designated doctor duly made a declaration well within the extended 240-day period that the seafarer was fit to work.
Having understood the 120 – 240 day decision, there are three recent and important decisions by the Philippines Supreme Court which are relevant to Ship-Owners, Technical Managers as well as Crewing Managers.
Case No. 1: Supreme Court rules seafarer who abandons treatment cannot claim benefits
Magsaysay Maritime Corporation v NLRC
GR 191903, Second Division, June 28 2013
Facts
- A seafarer was medically repatriated due to a spine condition on August 31 2005.
- On repatriation he was referred to the company-designated doctor for treatment, and he underwent surgery and physical therapy until March 17 2006.
- He was supposed to return for further examination on April 6 2006.
- On January 19 2006, the seafarer filed a complaint before the National Labour Relations Commission (NLRC) for payment of disability benefits, sick pay and attorney's fees, despite the fact that he was still advised to undergo further treatment.
- The seafarer argued that he should be paid full disability benefits based on his collective bargaining agreement, considering that he was declared unfit to work despite the lapse of 120 days.
- During the NLRC proceedings, the seafarer submitted a medical report from his personal doctor declaring him permanently unfit as a seafarer.
The labour arbiter's decision
The labour arbiter awarded the seafarer $70,000 in disability benefits, as he was considered permanently and totally disabled because he was unable to work or earn a living in the same kind of employment for more than 120 days from his repatriation. It was noted that the seafarer was under treatment for 197 days (the date of the last report of the company-designated doctor) and no declaration of the degree of disability of fitness to work had been issued. The NLRC affirmed the labour arbiter's decision, and the Court of Appeals affirmed the NLRC ruling.
Supreme court appeal decision
On further appeal, the Supreme Court held that the seafarer was not entitled to disability benefits. No assessment had been issued by the company-designated doctor regarding the extent of the seafarer's disability, as required by the Philippine Overseas Employment Administration Contract (POEA) contract.
The Supreme Court noted that under Section 20(B)(3) of the POEA contract, a company-designated doctor is tasked with the duty of determining fitness to work or the degree of disability of the seafarer. In this case, the company-designated doctor could not be faulted in not issuing a final medical assessment as the seafarer was still undergoing treatment and had been advised to return on April 6 2006, to which he did not comply. The company could therefore not be blamed in claiming that the seafarer had abandoned his treatment.
The court stated that the rule for the duration of the treatment must not exceed 120 days. The seafarer was on temporary total disability as he was totally unable to work. He was to receive his basic wage during this period until he was declared fit to work or his temporary disability was acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA contract and by applicable Philippine laws. If the 120-day initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a partial or total disability already exists. The seafarer may of course also be declared fit to work at any time that such a declaration is justified by his medical condition.
Based on this rule, when the company-designated doctor issued her last progress report on March 17 2006 – the 197th day of treatment – the seafarer was legally under a state of temporary total disability, since the 240-day period had not yet lapsed. The labour arbiter, the NLRC and the Court of Appeals failed to appreciate the facts and the applicable law when they ruled that because the seafarer was unable to perform his work for more than 120 days that he became entitled to permanent total disability benefits. The failure to issue a disability assessment or a fit-to-work declaration after 197 days from his repatriation by the company-designated doctor is not grounds to award permanent total disability benefits. There had been no assessment because the seafarer was still undergoing treatment and evaluation by company doctors, particularly the orthopaedic surgeon, within the maximum 240-day period provided. The seafarer was supposed to return for further evaluation but failed to honour his appointment.
The Supreme Court cited the earlier case of CF Sharp Crew Management Inc v Taok in disregarding the findings of the seafarer's personal doctor. The court noted that while the seafarer had a right to seek the opinion of other doctors, this was on the assumption that the company-designated doctor had already issued a final medical assessment which the seafarer had found disagreeable. In this case, the seafarer prevented the company-designated doctor from issuing a declaration of fitness or unfitness when he failed to report for medical evaluation. The seafarer did not follow the correct procedure to contest the company-designated doctor's findings, and for this reason the findings of his personal doctor could not be given weight.
A seafarer is considered under temporary total disability for the first 120 days of treatment. If further treatment is needed beyond 120 days the period may be extended up to 240 days, and during this period the seafarer is still considered to be under temporary total disability. As such, the court held that considering the seafarer was under temporary total disability for 197 days, he should be provided with income benefit equivalent to 197 days. The court referred to 'income benefit' under the Rules and Regulations Implementing Book 4 of the Labour Code, Section 2, Rule X, which is an employees' compensation law paid out by the State Insurance Fund. However, the court ordered the company to pay income benefit to the seafarer.
In this case, the court reiterated its previous rulings that the seafarer's claim should not prosper, considering that when he filed his complaint he was still under treatment within the 240-day period and he failed to present himself to the company-designated doctor for further treatment. As such, the company-designated doctor was unable to provide a final medical assessment in accordance with the POEA contract.
This decision strengthens the provision on medical abandonment now contained in the 2010 POEA contract, which states that a seafarer shall regularly report to the company-designated doctor on the dates prescribed and that failure to so do will result in the forfeiture of the right to benefits.
Unfortunately for vessel interests, the court appears to have introduced a new concept – the payment of income benefit. The court held that the seafarer was entitled to 197 days of income benefit for the period that he was under a state of temporary total disability. While income benefit was referred to by the court as that stated in the Labour Code, the same nevertheless appears to refer to sick pay, as previous court rulings clearly state that during the time of temporary total disability, the seafarer receives a basic wage until he is declared fit or the degree of his disability is established. If this is so, then the Supreme Court appears to have extended the seafarer's entitlement to sick pay beyond the 120 days provided.
Case No. 2: Supreme Court rules no benefits if injury caused by willful act
INC Shipmanagement, Inc., Captain Sigfredo E. Monterroyo and/or Interorient Navigation Limited vs. Alexander Moradas G.R. No. 178564; Second Division; January 15, 2014
Facts
- The parties presented contradictory facts.
- The seafarer alleged that while he was disposing garbage in the incinerator room of the vessel, there was an explo sion which caused chemicals to splash all over his body and caused burns.
- While the seafarer underwent the necessary treatment, he later on filed a claim for permanent disability benefits, while undergoing treatment, claiming that his condition would no longer allow him to return to work.
- On the other hand, the company disputed the allegations of the seafarer.
- According to them, the seafarer's injuries were self-inflicted.
- They presented statements of other crewmembers that the seafarer poured thinner on his overalls and set himself on fire.
- Seafarer was led to commit such an act because he was caught pilfering the ship's supplies after a routine security inspection by the vessel officers and was informed that he will be dismissed from employment.
- The company presented statements to show that just before the injury, the engine room of the vessel was flooded and when the alarm sounded, he was seen disappearing up to the boiler deck leaving small patches of water on the floor, on the steps and on the deck where he had been.
- Another statement of a crew was presented that he saw the seafarer go inside the paint room and soak his hands in a can full of thinner and proceeded to the incinerator door where he was set ablaze.
- There were also no signs of explosion.
- The seafarer's overalls had patches of green paint on the arms and body and smelled strongly of thinner.
- An open paint tin can was found near the place of the incident and a cigarette lighter lying beside the seafarer which another crew confirmed that he lent it to the seafarer although he knew that the former did not smoke.
The labour arbiter's decision
The labor arbiter and the NLRC sided with the position of the company that the injury was self-inflicted and not accidental in nature. However, the Court of Appeals saw it differently and awarded US$60,000 disability benefits to the seafarer as it is contrary to human nature for the seafarer to burn himself. There were likewise no direct evidence which would show that the seafarer burned himself.
Supreme court appeal decision
When the matter reached the Supreme Court, they saw it proper to review the factual antecedents and evidence of the case due to the difference of factual findings between the NLRC and the Court of Appeals. This is despite the fact that the Supreme Court's jurisdiction is generally called only on questions of law.
The Supreme Court ruled that the seafarer is not entitled to disability benefits as the injuries were self-inflicted. Said disqualification is based on Section 20 (D) of the POEA Contract which states that no compensation shall be due to disabilities arising from the seafarer's willful act. While it is true that the company has the burden of proof in showing that the injury is due to the willful act of the seafarer, the Supreme Court noted the following to hold that seafarer's injury was directly attributable to himself:
- Circumstances which all lead to the reasonable conclusion that seafarer was responsible for the flooding and burning incidents. The statements of the crewmembers as well as pieces of evidence would prove that the seafarer flooded the engine room and burned himself were never properly controverted by the seafarer.
- Seafarer's version that the burning was caused by an accident is hardly supported by evidence on record. The corroborating statements of the crew would show that there was no fire in the incinerator room at the time seafarer got burned. If there was really an incinerator explosion, then seafarer's injury would have been more serious. The evidence showed that the clothes of the seafarer smelled strongly of thinner and a prudent man would not dispose of garbage in the incinerator under such condition.
- The theory that seafarer's burns were self-inflicted gains credence through the existence of motive.
The Court found it important to examine the existence of motive since no one actually saw what transpired in the incinerator room. The confluence of the circumstances antecedent to the burning should be examined in conjunction with the existing accounts of the crew members. There is a factual finding that prior to the burning incident, seafarer was caught pilfering the vessel's supplies for which he was told that he was to be relived from his duties. This adequately supports the reasonable conclusion that seafarer may have harboured a grudge against the captain and the chief steward who denied giving him the questioned items. It was natural for him to brood over feelings of resentment considering his impending dismissal. These incidents shore up the theory that he was motivated to commit an act of sabotage which backfired into his own burning.
Case No. 3: Supreme Court finds that seafarer’s psoriasis was work related
Maersk Filipinas Crewing Inc v Nelson E Mesina
GR 200837, First Division, June 5 2013
Facts
- A seafarer was engaged as a steward.
- About one month into his employment, he began to feel an unusual itchiness all over his body, followed by the appearance of small spots on his skin.
- He deferred seeking medical attention until October 2005.
- He was then subjected to a medical check-up onboard and, after considering the extent of the rashes on his upper torso and the fact that he was engaged in food preparation and service, he was medically repatriated on October 7 2005.
- He was referred to the company-designated physician and was diagnosed with psoriasis.
- The company-designated physician declared that the illness was not work related.
- Aggrieved, the seafarer sought the opinion of a dermatologist at the seafarer's hospital, who declared him to be suffering from psoriasis vulgaris, a disease aggravated by work, but not contagious.
- The seafarer then filed a case before the labour arbiter for payment of full disability benefits, damages and
attor neys' fees.
The labour arbiter's decision
The labour arbiter ruled in favour of the respondent and awarded $75,000 plus attorneys' fees. It ruled that the seafarer's illness was connected to his work and was therefore compensable. However, the National Labour Relations Commission (NLRC) held that there was no substantial evidence to prove that the nature and stress of the seafarer's work had aggravated his psoriasis.
The NLRC observed that the only evidence substantiating the claim that the seafarer's illness was work related was the certification of his dermatologist who had examined him only once. The NLRC accorded more weight to the certification of the company doctor, who was in a better position to assess the seafarer's condition after having treated him for eight months. The Court of Appeals reinstated the labour arbiter's decision. The Supreme Court affirmed the decision.
Supreme court appeal decision
After evaluating the findings of both the company doctor and the seafarer's own physician, the Supreme Court found that there were serious doubts over the company doctor's findings. While both doctors gave a brief description of psoriasis, it was only the seafarer's own physician who categorically stated the factors that may trigger the illness. The company doctor immediately concluded that the illness was not work related based merely on the absence of psoriasis in the schedule of compensable diseases in Sections 32 and 32A of the Philippine Overseas Employment Administration Contract. The company doctor failed to consider the various factors that the seafarer could have been exposed to while onboard. The court noted that as a steward, the seafarer used strong detergent, fabric conditioner, special soap and chemicals in performing his duties. Also, stress and climactic changes affect the working environment of any seafarer. These factors, taken together with the certification of the seafarer's doctor, established a causal connection between the illness and the seafarer's employment.
The court also noted that the seafarer was unable to work for more than 120 days, while the company doctor's
certification was issued after 259 days, with the seafarer still needing further medical treatment, thus rendering him unable to pursue his customary work. This made his condition a permanent and total disability.
The court now appears to require detailed explanations from medical experts as to the reason why an illness should not be considered work related. It is not enough for a company-designated doctor to state that an illness is not work related; there must be a detailed explanation for the conclusion.
The court appeared to go back to the 120-day reasoning when considering a seafarer permanently and totally disabled. While the seafarer's treatment in this case lasted for more than 240 days (which was reason to consider him totally and permanently disabled), the court cited Fil-Star Maritime v Rosete, which found that if a seafarer is unable to work for more than 120 days, he is considered to be totally and permanently disabled.
Hot tips
- ensure that crew are sourced from accredited seaman schools complying with international standards, including the SCTW Convention
- make sure that the MLC 2006, to which the Philippines is a signatory, is complied with during every stage of the crewman's employment
- conduct rigorous PEME testing and seek to only use accredited or audited clinics
- make sure that crew know and follow the company's rules on safety and health for their time on board the vessel : this is a continuing education process
- ensure crew know that their welfare is important, and have appropriate shore and on board procedures that support the crew for their time on board
- pre-plan for accidents and illnesses, so that there is a strong procedure in place, and all key stake holders know their role and respond promptly
- good after incident care and support will assist in ensuring the crew man enjoys the best chance of a speedy recovery and the ability to return to work
- good record keeping, from the initial assessment before employment, during the entire on board time and until signing off is essential
The association is grateful to Mr Ruben T Del Rosario (Partner, Del Rosario & Del Rosario law Offices) for contributing to this article.