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Personal comfort doctrine applied in seafarer’s claim

Philippine Shipping Update – Manning Industry

By:  Ruben Del Rosario, President, Del Rosario Pandiphil Inc., 22 March 2021 (Issue 2021/04)


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Personal comfort doctrine applied in seafarer’s claim
Seafarer was engaged as Second Assistant Engineer on-board the ship.  While the vessel was anchored, the seafarer was singing and jumping in front of a videoke machine together with another crew member when he slipped and fell out of balance. As a result, he suffered major knee injuries. He was diagnosed in a shore medical facility with fracture fragmentary of the tibia bone epiphysis in the right leg and fracture crack of the tibia bone epyphysis in the left leg. It was recommended that he undergo major knee surgery or osteosintesis-fixation and sterilization. The seafarer was then repatriated for further treatment and was referred to the company-designated physician. The seafarer was recommended to undergo major knee surgery. The company insisted that seafarer should shoulder the cost of his surgery. Since seafarer’s protests fell on deaf ears, he was compelled to undergo the necessary surgery and also shouldered his physical rehabilitation which ensued thereafter. Nonetheless, seafarer was required to report to the company-designated physician.  After a series of examinations, the company-designated physician issued an interim disability assessment of grade “10” to the seafarer.  However, seafarer’s attending physician in Seamen's Hospital, Iloilo declared him unfit for duty.  Eventually, the company-designated physician issued a final disability assessment of Grade 10 for the seafarer.  Seafarer then sought the opinion of two other doctors who issued a medical report recommending permanent disability and considered him permanently unfit in any capacity for further sea duties.  On the basis of the medical reports he obtained, the seafarer sent a letter to the company asking for referral to a third doctor.  Eventually, the seafarer initiated arbitration proceedings against the company before a panel of voluntary arbitrators (Panel) of the NCMB.
The Panel ruled that seafarer is entitled to total and permanent disability benefits worth US$131,797.00 based on the Collective Bargaining Agreement (CBA), damages and attorney’s fees.  According to the Panel, a work-related injury is one arising out of and in the course of employment. An injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while fulfilling those duties or engaged in something incidental thereto. Under the personal comfort doctrine, acts of personal ministration for the comfort or convenience of the employee is an incident of employment. Thus, the Panel held that when the seafarer suffered from his injury, he was engaged in an act necessary to his physical well-being and incidental to his employment.  The Panel also found no evidence to show that the company gave the seafarer a copy of his final disability assessment. The Panel was more convinced with the findings of seafarer’s doctors that his disability was total and permanent.
On the other hand, the Court of Appeals denied the claim of the seafarer. The appellate court held that seafarer’s injury was not work-related, work-caused, or work-aggravated. It has no connection whatsoever to his official duties. Consequently, it is not compensable.
Upon petition with the Supreme Court, it was held that the disability is compensable but limited the same based on the assessment of the company-designated physician.

The injury is compensable
The Court appears to have applied to personal comfort doctrine in resolving that the seafarer is entitled to disability benefits.
The Court held that in order for a seafarer's injury to be compensated, it must be shown that: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract. A work-related injury is defined as one arising out of and in the course of employment. As for what can be considered in the course of employment, the Court previously held that it is when it takes place within the period of the employment, at a place where the employee reasonably may be, and while he is fulfilling his duties or is engaged in doing something incidental thereto.
The Court held that acts reasonably necessary to health and comfort of an employee while at work, such as satisfaction of his thirst, hunger, or other physical demands, or protecting himself from excessive cold, are incidental to the employment and injuries sustained in the performance of such acts are compensable as arising out of and in the course of employment.  In this case, seafarer’s act of singing can be considered necessary to his health and comfort while on board the vessel. He incurred his injury while he was performing this act. Seafarer neither willfully injured himself nor acted with notorious negligence. Notorious negligence is defined as something more than mere or simple negligence or contributory negligence; it signifies a deliberate act of the employee to disregard his own personal safety. Jumping while singing cannot be considered as a reckless or deliberate act that is unmindful of one's safety. There is nothing inherently dangerous about jumping while singing. The truth is that he simply lost his balance. Accordingly, seafarer’s injury is compensable.

The degree of disability as established by the company-designated physician shall prevail
The Court took note of the various medical certificates and laboratory test results detailing the extent and nature of seafarer’s injury and found that that the impediment assessment of Grade 10 (20.15%) is reflective of his medical status and resulting incapacity. The Court reviewed the schedule of disability or impediment for injuries under the POEA-SEC and found a comparable disability equivalent to Grade 10 as follows: “LOWER EXTREMITIES xxxx 23. Complete immobility of a knee joint in full extension ............ Gr. 10”.
The Court noted that seafarer's injury does not qualify for a Grade 1 rating under Section 32 of the POEA-SEC. The medical conditions affecting the lower extremities under the POEA-SEC that are more severe in nature than seafarer’s condition and qualify for a Grade 1 rating include loss of both feet at ankle joint or above, failure of fracture of both hips to unite, and paralysis of both lower extremities. As such, the seafarer was awarded US$10,075 disability benefits based on the Grade 10 assessment of the company-designated physician.

The CBA was not properly proven
The CBA that seafarer alleged to have covered his employment was not applied by the Court.  Firstly, the Court held that there was no showing that the alleged CBA covers the company and the seafarer’s union as it was not signed by any party.  Secondly, the alleged CBA presented by the seafarer was entitled "P.N.O. TCC Collective Agreement".  There is no showing whether such CBA is the same as that mentioned in the POEA Contract of the seafarer which is "IBF-FKSU/AMOSUP KSA”. Therefore, as the CBA was not properly proven by the seafarer, the provisions of the 2010 POEA-SEC shall govern.
J. O. Vs. Magsaysay Maritime Corp., SK Shipping (Singapore) Pte. Ltd, et. al., G.R. No. 245858, December 2, 2020; Associate Justice Rosmari Carandang, ponente
Author’s Note: The above decision of the Court seems to be at odds with their previous decision in Guerrero vs. Philippine Transmarine Carriers, Inc., (3 October 2018).  In the Guerrero Case, the Court denied a claim for disability benefits by a crewmember who suffered an injury while working out in the ship’s gym.  In that case, the Court held that as aptly contended by the company, there is nothing in the Job Description Manual which states that part of the crew’s duty as a Casino Dealer is to go to the crew gym and use its facility for his physical workout. Verily, the crew failed to prove work-causation of the subject injury.




Areas of Specialization:  Labour & personal injury, litigation and dispute resolution, corporate and commercial, shipping and admiralty, intellectual property, cargo claims and charter party, transport, insurance and reinsurance, arbitration and ADR, immigration.
 “‘Outstanding’ shipping boutique Del Rosario & Del Rosario is regularly sought out by the international group of P&I clubs as well as insurance companies and cruise lines. The firm has expertise in all aspects of shipping matters including labour, personal injury, vessel arrest, collisions, salvage, oil pollution, damage of cargoes, bunker claims, protection and indemnity, and ship finance. Its notable IP group has also been engaged by global giants such as Facebook, Instagram, LinkedIn and Sony”. 2021 AsiaLaw Profile.
“Specialising in maritime law, 
Del Rosario & Del Rosario is best known for acting for multinational clients in disputes relating to oil pollution, damaged cargo, salvage and vessel arrest. The group also has an extensive labour practice which is active in a full range of disputes involving Filipino seafarers. Del Rosario advise a variety of noteworthy clients, including shipping companies, insurers and P&I clubs.” 2021 Legal 500 Asia Pacific.




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