Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., October 15, 2016 (Issue 2016/11)
“Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497
In this issue:
Supreme Court rules that company-designated doctor in the best position to determine the condition of the seafarer; reiterates that non-compliance with third doctor rule is fatal to the cause of the seafarer
Supreme Court rules that company-designated physician in the best position to determine the condition of the seafarer; reiterates that non-compliance with third doctor rule is fatal to the cause of the seafarer
Seafarer was hired as Third Mate. During his employment, his right hand was slammed by a wooden door while he was performing his duties. As a result thereof, seafarer suffered a wrist injury. He was referred to a shore medical facility where he was diagnosed with "fracture, closed, distal third radius and comminuted, with ulna head dislocation." Seafarer was repatriated for further medical treatment and he was placed under the management of the company-designated physician. He underwent surgery [Open Reduction, Plating with Bone Grafting (Synthetic Bone Graft Osteopore, Right) and Application of External Fixator Right] which proved to be successful.
After two months, seafarer underwent another surgery for the removal of the external fixator and was discharged the following day. After the second surgery, seafarer underwent physical therapy to facilitate for the complete rehabilitation of his injured hand. After more than four months of treatment, seafarer was declared ''fit to resume former work" by the company-designated physician.
The seafarer disagreed with the company-designated doctor and sought the opinion of his own doctor who assessed him with a Grade “2” disability. Armed with said medical report, he sought for the payment of disability benefits by filing a claim against the company.
The Labor Arbiter denied the claim and upheld the findings of the company-designated physician. On appeal, the NLRC granted the claim on the argument that seafarer was disabled for more than 120 days.
The Court of Appeals reinstated the decision of the Labor Arbiter and held that the findings of the company-designated doctor are credible and that the 120 day rule was misapplied by the NLRC.
When the case reached the Supreme Court, the claim for disability benefits was denied.
The company-designated doctor is in the best position to determine the condition of the seaman
It was the argument of the seafarer that the medical findings of his doctor should have been given credence over the findings of the company designated physician. According to seafarer, his doctor was the one who opined that because of the intra-ventricular involvement of his fracture, there is a limitation in the joint motion of his right hand and he is suffering from residual pain which incapacitates him from lifting heavy objects and operating machines on the ship.
The Court did not agree because seafarer’s doctor’s findings was merely based on physical examination and on the medical records brought by the seafarer on the occasion of his consultation. No diagnostic tests or any medical procedure was conducted by seafarer’s doctor to support his disability grade finding. Said doctor examined the seafarer only once and could not possibly form a reliable opinion of seafarer's fitness to work based on a single consultation. In contrast, the company-designated physician was able to closely monitor the condition of seafarer's injury from the day after he was repatriated up to the time that he underwent surgery and rehabilitation and until his disability rating was issued. On the basis of the recession of symptoms, the progress of which the company designated physician has observed for four months, he has a reasonable basis to arrive at the conclusion that the petitioner is already fit to render work of similar nature as he was previously engaged.
Breach of the third doctor rule
The Court added another reason in denying the claim – the seafarer failed to comply with the procedure laid down under the POEA-SEC with regard to the joint appointment by the parties of a third doctor whose decision shall be final and binding on them in case the seafarer's personal doctor disagrees with the company-designated physician's fit-to-work assessment. This referral to a third doctor has been held by the Court to be a mandatory procedure as a consequence of the provision that it is the company-designated doctor whose assessment should prevail. In other words, the company can insist on its disability rating even against the contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking for a referral to a third doctor who shall make his or her determination and whose decision is final and binding on the parties.
Eduardo Silagan vs. Southfield Agencies, Inc. Victoriano Basco and/or Hyundai Merchant Maritime Co., Ltd. G.R. No. 202808, August 24, 2016; Third Division, Associate Justice Jose Portugal Perez, ponente (Attys. Charles Dela Cruz and Jerome Pampolina of DelRosarioLaw handled for vessel interests)
Del Rosario & Del Rosario Law Office Partners Charles Dela Cruz and Florencio Aquino together with Del Rosario Pandiphil Senior Claims Executive Jay Arthur Del Rosario visited several P & I Clubs, Ship Owners and Ship Managers in Greece and Cyprus from 5 September 2016 to 14 September 2016.
Aside from several meeting with industry partners, they conducted seminars and discussions on the latest legal updates regarding crew claims and procedures in the Philippines.
We would like to extend our sincerest thanks to all our partners in Greece and Cyprus who provided us with a warm reception during the visit. Our discussions proved invaluable and we hope to see all of you again soon.
Del Rosario & Del Rosario is more or less unrivalled when it comes to maritime work in the Philippines” from Asia-Pacific, The Legal 500, 2014, p. 497
“Del Rosario & Del Rosario is often first port of call for employment law within the maritime industry, where it represents shipowners, agents, insurers and port owners.” Asia-Pacific, The Legal 500, 2014, p. 494
“Offers comprehensive shipping expertise. Maintains an excellent reputation for representing P&I firms and handling collision and crew casualties. A strong team that is well known in the market.” Chambers Asia Pacific, 2014 p. 949
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