Philippine Shipping Update – Manning Industry
By: Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 8 November 2017 (Issue 2017/19)
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Supreme Court denies claim based on a medical condition which was not the cause of repatriation
The crewmember was engaged as bartender on-board the ship. During employment, the crewmember sustained a knee injury. He initially consulted the ship's physician for medical examination and later on with other shore medical facilities. After his treatment, the crewmember went back to work.
Later in the employment, the crewmember began experiencing skin rashes on his lower and upper extremities. These skin eruptions were diagnosed by the ship's physician as ''psoriasis". The crewmember was given medications and was advised to get dermatologic consultation upon completion of his contract. Consequently, the crewmember was repatriated to the Philippines and was referred by the company to their designated clinic for examination.
Upon his initial examination with the company-designated physicians, the crewmember’s knee injury was not mentioned in his past medical history. The crewmember was then referred to a dermatologist who opined that he had ''psoriaris vulgaris". All throughout the various consultations, there was no mention that the crewmember complained of a knee injury.
While the crewmember was still undergoing medical treatment with the company-designated physician, he sought the opinion of his chosen doctor. He was assessed to be suffering from psoriasis and grade II injury medial collateral ligament right knee, sprain, medial head of gastrocnemius with hemarthrosus. Said doctor also found the crewmember unfit to go back to work.
Based on the medical certificate of his chosen doctor, the crewmember filed a complaint for disability benefits before the Labor Arbiter for full disability benefits based on his psoriasis and knee injury.
Upon knowing of the claim, the company offered to conduct a laboratory examination on the crewmember to verify his knee injury but the latter did not accede. Despite the filing of his complaint, the crewmember continued his medical treatment with the company-designated doctor. On the 226th day of treatment, the company-designated doctor issued a Grade 12 disability for the crewmember’s psoriasis condition.
The Labor Arbiter issued a Decision finding the crewmember to be entitled only to Grade 12 disability benefits in accordance with the assessment of the company-designated physician. On the other hand, the NLRC awarded the crewmember maximum disability benefits. Such award was affirmed by the Court of Appeals.
Upon petition, the Supreme Court reinstated the award of disability benefits of the Labor Arbiter limiting the disability benefits to the equivalent of grade 12.
The crewmember failed to discharge his burden of proving entitlement to full and permanent disability benefits for his alleged knee injury
The Court held that in case of claims for disability benefits, the burden of proof falls on the claimant to establish his claim with the right quantum of evidence; and as such, it cannot rest on mere speculations, presumptions or conjectures.
Given this standard, the company, cannot be held liable for the alleged knee injury suffered by the crewmember. While it was found that the crewmember suffered a knee injury during the term of his employment contract, such knee injury was not the ailment complained of by the crewmember upon repatriation and is, likewise, not the illness for which he was given medical treatment. In fact, upon completion of his contract, the crewmember was advised to consult a dermatologist for his skin eruptions. That the crewmember did not complain of, and was not treated for, the alleged knee injury is evident from the medical reports submitted by the company-designated physician detailing the progress of the skin condition. Also, the certification issued by the company-designated physician does not at all pertain to the crewmember’s alleged knee injury but solely on his skin condition. The only instance when crewmember's alleged knee injury again surfaced after repatriation was when he consulted his doctor of choice. But even then, the Court did not give credence to the certification issued by the crewmember’s chosen doctor as the same is based on a single consultation four months after repatriation. Also, no medical tests were conducted that would support the conclusion that the crewmember is unfit for sea duty in whatever capacity as a seaman.
Crewmember is entitled to disability benefits equivalent to grade 12 as certified to by the company-designated physician for his psoriasis
In favoring the findings of the company-designated doctor the Court noted that a dermatologist periodically treated the crewmember for months and monitored his condition. This deserves greater evidentiary weight than the single medical report of crewmember's doctor of choice.
Moreover, the fact that the company-designated physician issued a disability assessment on 223rd day upon repatriation is of no moment. The rule provides the company-designated physician a maximum of 240 days within which to issue a final assessment. Clearly, before the maximum 240-day medical treatment period expired, the crewmember was issued a final disability Grade 12 which is merely permanent and partial disability, since under the POEA Contract, only those classified under Grade 1 are considered permanent and total disability.
Maunlad Trans Inc., Carnival Cruise Lines et al. vs. Gabriel C. Isidro, G.R. No. 222699, July 24, 2017, Third Division, Associate Justice Noel Tijam, ponente (Attys. Joseph Rebano and Gina Guinto of Del Rosario & Del Rosario handled for vessels interests)
Revisiting the Philippine Immigration Rules for Seafarers calling on Philippine Ports
All Non-Filipino seafarers onboard vessels calling ports of the Philippine must have a valid seaman’s visa. Visa-free or visa on arrival privileges are limited only to tourists and not applicable to seafarers onboard vessels.
Further, vessels who have on board crew without visa can be allowed to make a port of call subject to the approval of the Chief, Seaport Operations Division and the Immigration Regulation Division of the Bureau of Immigration:
(1) Vessels proceeding from a port or place where no Philippine Consular Officer is stationed and it is not possible for such vessel or aircraft to comply with the crew list requirements;
(2) Vessels owned entirely by the government;
(3) A member of the crew of a vessel who is in possession of an appropriate individual visa or re-entry permit;
(4) A member of the crew of the vessel in whose individual case an emergency waiver of the crew list visa requirement has been granted by the Secretary of Foreign Affairs; and
(5) Vessels proceeding from one foreign place or another which is diverted from the course under emergency conditions and enters the port of the Philippines provided the crew list requirement is waived by the President of the Philippines.
Nationals of the following countries are considered restricted nationals: Algeria, Egypt, Iran, Iraq, Jordan, Lebanon, Libya, Pakistan, Palestine, Sudan, Syria and Yemen pursuant to Foreign Service Circular No. 22-10. These restricted nationals will be allowed entry in the Philippines as seafarers on board vessels provided they have the required seaman’s visa subject to the approval of the Chief, Seaport Operations Division and the Immigration Regulation Division.
However, pursuant to Immigration Administrative Order No. JHM 2017-006 (Strict Implementation of Visa Requirements for Passengers and Crew of Incoming Vessels), vessels with seafarers who are restricted nationals shall be prohibited from making calls in ports that are:
(a) Areas of conflict;
(b) Areas of International Assembly;
(c) Places where the President and/or other officials of Government are present; and
(d) Other areas that may be identified by the Commissioner or his authorized representations
The prior approval of the Chief of the Seaport Operations Division and the Immigration Regulation Division is required for any exceptions to the said prohibition.
Mindanao island, being under martial law, is understood to be considered as an area of conflict. In addition to the usual port entry formalities, the Armed Forces of the Philippines conducts independent security checks of incoming vessels to Mindanao and has the authority to exclude / detain vessels and/or crew members deemed as security risks such as crew members with derogatory records (regardless of nationality and presence of a valid visa).
To minimize risk of being accessed fines and incurring delay, Shipowners / managers should submit the required Notice of Arrival together with the visead crew list at least forty eight (48) hours before the actual arrival of the vessel for the approval of the Chief, Seaport Operations and the Immigration Regulation Division of the Bureau of Immigration.
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