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Supreme Court disregards findings of seafarer’s doctor for abandoning treatment with the company-designated physician
Seafarer was engaged by the company as an Able Seaman. During his employment, he experienced pain on his lower back and after consultation with a shore doctor was medically repatriated. The seafarer was referred to the company-designated physician where he was diagnosed with lumbosacral muscle strain. Physical therapy was recommended and seafarer showed signs of good improvement. Because of this progress, the company-designated physician assured the seafarer that he could be given a fit-to-work certification after six sessions of physical therapy. However, notwithstanding the assurance, seafarer no longer reported back to the company-designated physician resulting to his medical abandonment. For failure of the seafarer to report back, the company-designated physician issued a medical certificate assessing the former’s disability at grade “11” based on his last medical examination.
The seafarer consulted his own doctor who declared him to be unfit to work at his previous occupation. He then claimed payment of disability benefits which was denied prompting him to file a formal complaint with the Labor Arbiter. The seafarer argued that since his disability lasted for more than 120 days, and that he was declared unfit by his doctor, he is now entitled to maximum disability benefits. The company denied the claim as the seaman committed medical abandonment.
The Labor Arbiter and the NLRC favored the arguments of the seafarer and awarded full disability benefits. However, the Court of Appeals disagreed and limited the award to US$7,465 based on the grade “11” assessment of the company-designated doctor. The Supreme Court affirmed the Court of Appeals.
The Supreme Court explained that the company-designated doctor has 120 days within which to issue a final medical assessment and upon sufficient justification this may be extended to 240 days.
Here, the seafarer was under the care of the company-designated physician, who regularly monitored and issued reports on seafarer's condition. However, on the 162nd day of treatment, the seafarer discontinued his physical therapy when he did not return for his treatment and the company-designated doctor has not yet issued a definite declaration on his condition. Without waiting for such declaration and/or the lapse of the 240 day period, the seafarer prematurely filed the suit even if his cause of action had not yet accrued.
Moreover, the opinion of seafarer's personal doctor cannot be given credence as it did not give the seafarer the cause of action he lacked when he filed the complaint. The Court said that while a seafarer has the right to seek the opinion of other doctors, such right may be availed of on the presumption that the company-designated physician had already issued a definite declaration on the condition of the seafarer, and the seafarer finds it disagreeable. Given the lack of certification from the company-designated physician, seafarer cannot rely on the assessment made by his own doctor.
Nevertheless, the Supreme Court stated that the seafarer is entitled to US$7,465 based on the grade 11 disability rating as determined by the company-designated physician as this was issued within the time allowed to do so.
R. G. vs. Sea Power Shipping Enterprise, Inc. Mississauga Enterprises, Inc. et.al, G.R. No. 226200, August 5, 2019, Third Division, Associate Justice Henri Jean Paul Inting, ponente (Attys. Pamela Coseip-Abarico and David Valencia of DelRosarioLaw handled for vessel interests)
Health Alert: Re-emergence of Polio virus in the Philippines
After 19 years of being polio-free, Polio is re-emerging in the Philippines. As of this writing, there are now seven confirmed polio cases nationwide. In line with this unfortunate development, the Philippine Department of Health (DOH) has now issued a travel advisory for travelers entering and leaving the Philippines. For those leaving, they are encouraged to check the immunization requirements of their country of destination, and if required, to receive a dose of Inactivated Polio Vaccine (IPV) and get their International Certificate of Vaccination (ICV) from the Bureau of Quarantine to serve as proof of their vaccination.
At present, there is generally no requirement for Filipino seafarers to get the polio vaccination before deployment. However, we recommend the manning agents to check which countries of destination (or ports of joining/ disembarkation) require such proof of vaccination.
As currently advised by the Bureau of Quarantine, the list of countries requiring a certificate of polio vaccination are as follows:
1. Afghanistan
2. Belize
3. Brunei Darussalam
4. Georgia
5. India
6. Indonesia
7. Iran
8. Iraq
9. Jordan
10. Lebanon
11. Maldives
12. Morocco
13. Oman
14. Pakistan
15. Qatar
16. Saint Kitts and Nevis
17. Saudi Arabia
18. Seychelles
19. Ukraine
Said list and varying requirements are updated regularly. Hence, we suggest constant verification with the specific country included in the list as well as other countries a traveler intends to visit.
The vaccination is administered by both private and government hospitals including the Bureau of Quarantine, the authority which issues the certificate (ICV). The vaccine is free of charge when received from a government hospital. On the other hand, the certification from the Bureau of Quarantine has a fee of PHP 300 (or roughly USD 6). In view of the number of travelers applying for the ICV, the certification may currently take about 4 weeks to be issued and this should be taken into consideration in any deployment.
Firm News
Our thanks to Cecilie Holm Nilsen from GARD P&I for participating in the DelRosarioLaw Familiarization Program last 18 – 25 November 2019.
The DelRosarioLaw Familiarization Program aims to help participants in better understanding Filipino crew claims and the legal system in the Philippines. It includes visits to PEME and post-employment clinics, the labor courts, manning agents and the unions.
Should you wish to participate, please send us an email and we will be more than happy to welcome and assist you in the program.
DelRosarioLaw Partner Florencio Aquino was a speaker at the crew conference of Seanergy Maritime Corp. / VShips Manila last 21 November 2019 which was held at Citadines Bay City Hotel. He discussed issues arising from concealment in the pre-employment medical examination and the Seafarer’s Protection Act.
Our congratulations and thanks to Seanergy Maritime Corp. / VShips Manila for a successful conference. See you all again soon. |
