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Season's Greetings 2023

Dear clients and friends,
 
Maligayang Pasko at Manigong Bagong Taon. 
 
This year has been quite normal in the Philippines.  We’ve had our usual foreign visitors and we have visited quite a number of local manning agencies.  We’ve done visits to clients in Singapore and Japan.  We’ve conducted a familiarization program with Skuld.  While the NCMB still have their virtual conferences, the NLRC and the courts are now on full face to face hearings.
 
We continue our yearly aid to Tuloy Foundation, the Church of the Poor Apostolate, the Sacred Heart Chapel and other charitable institutions.  This year we partnered with OSM Thome with their solar powered Center for Learning  and assistance to remote schools in Dinagat.
 
We thank all of you for your continued trust in DelRosario.  We trust that we have given the service that you deserve and again, ask that you let us know the areas where we need improvement.
 
As always, we ask that you say a short prayer for the countless Filipino seafarers who are unable to spend their Christmas season with their families.  If you see any Filipino seafarer this Christmas season, greet them “Maligayang Pasko” from all of us here in the Philippines.
 
We wish all of you and your family the best of the season and may the coming year 2023 bless us all with good health, happiness and prosperity.
 
MERRY CHRISTMAS AND A HAPPY NEW YEAR
 
Ruben Del Rosario / Arturo Del Rosario
 
Charles Jay Dela Cruz / Joseph Rebano / Herbert Tria
 
Denise Cabanos / Florencio Aquino / Catherine Mangahas-Soliven / Pamela Coseip-Abarico / Saben Loyola / Gina Guinto-Ambil / Aldrich Del Rosario
 
Veronica Del Rosario-Aguinaldo / Josie Dino / Jay Arthur Del Rosario / Deogracias Garcia / Razelle España / Shirley Perez
 
 

SUPREME COURT EN BANC DECISION ON THIRD DOCTOR GUIDELINES

Seafarer was a cook onboard the ship when he experienced cough, fever and difficulty in breathing. He was eventually repatriated and was diagnosed by the company-designated physician (CDP) with pneumonia with recurrent pleural effusion, left s/p thoracentesis, left. After almost two months of treatment, seafarer was declared fit to work.
 
Seafarer then consulted his own doctor who declared him unfit for sea duty due to his pleural effusion and on that basis sent a letter of his willingness to undergo another medical examination to confirm his permanent disability. No response was made by the company and seafarer filed a complaint for total and permanent disability benefits.
 
The Labor Arbiter (LA) NLRC and the Court of Appeals unanimously dismissed the complaint for lack of merit and upheld the findings of the CDP.  When the case reached the Supreme Court, the denial of the claim was upheld.
 
The Supreme Court found that the assessment of the seafarer’s own physician lacked scientific basis.  It merely defined what pleural effusion is and how it is detected and explained the causes for such disease and the treatment therefor. He then concluded that petitioner was unfit for sea duty, without any further explanation. He neither discussed the results of the tests conducted by the CDP nor correlated such results to his finding that seafarer is already unfit to work.  In contrast, the CDP's extensive medical treatment enabled him to make a final diagnosis of seafarer's health condition was amply demonstrated and the fit to work findings was upheld.  
 
In an extraordinary instance, the Supreme Court En Banc (all the sitting Justices ruled on the case) also took this case as an opportunity to lay down the guidelines in case the seafarer requests for a third doctor referral.  These are the following:
 
First, a seafarer who receives a contrary medical finding from his or her doctor must send to the employer, within a reasonable period, a written request or demand to refer the conflicting medical findings of the CDP and the seafarer's doctor of choice to a third doctor, to be mutually agreed upon by the parties, and whose findings shall be final and binding between them.
 
Second, the written request must be accompanied by, or at the very least, must indicate the contents of the medical report or medical abstract from his or her doctor to be considered a valid request. Otherwise, the written request shall be considered invalid and as if none had been requested.
 
Third, in case where there was no request for a third doctor referral from the seafarer or there was such a request but is deemed invalid, the employer may opt to ignore the request or demand or refuse to assent, either verbal or written, to such request or demand without violating the pertinent provision of the POEA-SEC. Accordingly, if a complaint is subsequently filed by the seafarer against the employer before the labor tribunal, and the parties, after a directive from the LA fail to secure the services of a third doctor, the labor tribunals shall hold the findings of the company-designated physician final and binding, unless the same is found to be biased, i.e., lacking in scientific basis or unsupported by the medical records of the seafarer. In such a case, the inherent merits of the respective medical findings shall be considered by the tribunals or court.
 
If, however, the parties were able to secure the services of a third doctor during mandatory conference, the latter's assessment of the seafarer's medical condition should be considered final and binding.
 
Fourth, in case of a valid written request from the seafarer for a third doctor referral, the employer must, within 10 days from receipt of the written request or demand, send a written reply stating that the procedure shall be initiated by the employer. After a positive response from the employer, the parties are given a period of 15 days within which to secure the services of a third doctor and an additional period of 30 days for the third doctor to submit his/her assessment. The assessment of the third doctor shall be final and binding.
 
In case, however, where the parties fail to mutually agree as to the third doctor who will make a reassessment, a complaint for disability benefits may be filed by the seafarer against the employer. The labor tribunals shall then consider and peruse the inherent merits of the respective medical findings of the parties' doctors before making a conclusion as to the condition of the seafarer.
 
Fifth, if, however, the employer ignores the written request or demand of the seafarer, or sends a written reply to the seafarer refusing to initiate the referral to a third doctor procedure, or sends a written reply giving its assent to the request beyond 10 days from receipt of the written request or demand of the seafarer, the employer is considered in violation of the POEA-SEC. The seafarer may now institute a complaint against his or her employer.  The findings of the seafarer’s personal doctor may be upheld unless it is bias, tainted or not supported by scientific basis.
 
Sixth, upon the filing of the complaint and during the mandatory conference, the LA shall give the parties a period of 15 days within which to secure the services of a third doctor and an additional period of 30 days for the third doctor to submit his/her reassessment.
 
Seventh, if the services of a third doctor were not secured on account of the employer's refusal to give heed to the LA's request or due to the failure of the parties to mutually agree as to the third doctor who will make a reassessment, the labor tribunals should make conclusive between the parties the findings of the seafarer's physician of choice, unless the same is clearly biased i.e., lacking in scientific basis or unsupported by the medical records of the seafarer. In such a case, the inherent merits of the respective medical findings and the totality of evidence shall be considered by the labor tribunals or courts.
 
If, however, the failure to refer the seafarer's condition to a third doctor after directive from the LA was due to the fault of the seafarer, that is, the seafarer refuses to comply, then the labor tribunals and the courts should make conclusive between the parties the findings of the CDP unless the latter’s findings are biased and/or lacks scientific basis.
 
Eighth, if, despite the employer's failure to respond to the seafarer's valid request or demand to refer his or her condition to a third doctor, the parties, during mandatory conference, were able to secure the services of a third doctor ' and the latter was able to make a reassessment on the seafarer's condition, the third doctor's findings should be final and binding between the parties. In such case, the employer's refusal to respond to the seafarer's valid request for a referral should be considered immaterial.
 
T. B. v. Foscon Shipmanagement, Inc., Green maritime Co., Ltd. et al, G.R. No. 253480, April 25, 2023; Supreme Court En Banc, Justic Samuel Gaerlan, ponente (Attys. Aiyana Cruz and Florencio Aquino of DelRosarioLaw handled for vessel interests)

FIRM NEWS

SKULD UNDERGOES DEL ROSARIO'S FAMILIARIZATION PROGRAM

Skuld P&I Club participated in the DR Familiarization Program last 20-24 November 2023. Joining the program were Dimitris Fiotakis (Piraeus Office), Lynne Crossey (London Office) and Eric Zhao (HongKong Office).  The program consisted of in-house seminars conducted by DR Partners, visits to the labor tribunals, seafarer’s union, PEME and post-employment medical clinics as well as manning agents.

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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.