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Filipino Crew ClaimsFilipino Crew Claims
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15/F Pacific Star Building , Makati Avenue, 1200 Makati City, Philippines www.delrosariolaw.com 24/7 Mobile: 63 917 830 8384
November 2009
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established May 1, 1977 (correspondent since 1946)Del Rosario & Del Rosario Law Offices (22 lawyers)two managing partners,
Ruben Del Rosario and Arturo Del Rosario Jr.Del Rosario Pandiphil Inc. (12 claims handlers)
correspondent arm of Del Rosario & Del Rosariototal complement of 80 employeeslisted correspondent for more than 20 P&I Clubsin addition to maritime – labor, corporate, intellectual property, litigationPhilippine Shipping Update – to subscribe, email
[email protected]@delrosario-pandiphil.com
24/7 mobile +63 917 830 8384
introduction
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Work-Related Death
compensable
during term of
contract
work-relatedinjury orillness
not pre-existing illness
during the term of the contract…
seafarer fell and injured his backafter treatment, he was repatriated
he was treated in Manila for three months but he eventually died due to his injuries Is death compensable considering it occurred after end of contract?Yes, as his death is due to injuries suffered during the term of the contract
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seafarer fell and injured his backafter treatment, he was repatriatedhe was treated in Manila for three months and then was declared fit to workafter three months, agents got a claim from the widow stating her husband died due to his injuries Is death compensable considering it occurred after end of contract?Difficult to decide…since cause of death same as cause of repatriation, vessel may be held liable; but, considering already declared “fit to work”, is there a defense? examine, circumstances of death carefully
during the term of the contract…
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requisites:seafarer knowingly conceals past medical condition, disability or history
effectdisqualified from compensation and benefits
how determined?PEME formasked directly by physician, employermedical expertsdisclosed by seafarer in time of necessity
pre-existing illness
Work- Related Injury
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compensable
during term of contract work-related injury
Arise out of or in the course of employment
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Work-Related Illness
compensable
during term of contract
work related illness
occupational diseaseSec 32-A
disputably presumed (non-occupational disease)
Not pre-existing illness
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Work-Related Illness – Occupational Disease
compensable
during term of contract
occupational diseaseunder Sec. 32A
with conditions therein satisfied
no pre-existing illness
provision master (56 yrs old); with manning agent for 20 yearsfinished contractarrived in the evening…next morning, he “had sudden left-sided weakness upon waking up”diagnosed to have “hypertensive cardio-vascular disease”is illness compensable? see Sec. 32A (11)yes, occupational disease
task included lifting heavy provisionsdiagnosed within 24 hoursclean bill of health before joiningany doubt resolved in favor of labor
occupational disease…
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3 months onboard, AB was accidentally hit by a pipe on the right side of his abdomen. He fell and injured his back.He was also diagnosed with Tuberculosis IleitisIllness compensable? See Sec. 32A (18)No, having been hit by a pipe is too remote a cause as to result in the illness sought to be compensated while pulmonary tuberculosis appears in the list of occupationaldiseases, the inclusion is conditional. Claimant needs to show actual work-relatedness if the condition does not apply. AB was not engaged in one of the occupations where tuberculosis is a listed illness; thus, he carried the burden ofshowing by substantial evidence that his tuberculosis Ileitis was due to the abdominal injury he sustained on board or to his exposure to toxic chemicals and substances and to harsh weather conditions
occupational disease…
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Tug Master with principal for 15 years. Suffered severe coronary artery disease while onboard.Compensable? See Sec. 32A (11)Yes, different climates and unpredictable weather, as well as the stress of the job, had a correlation with the heart disease of aseafarer serving as a ship master.Master able to sufficiently prove, by substantial evidence, thathis illness was work related, given the arduous nature of his job that caused his disease or, at least, aggravated any pre-existing condition
occupational disease…
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Work-Related Illness – Non-occupational Disease
compensable
during term of contract
not listed as occupational disease but disputably
presumed work-related
no pre-existing illness
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Oiler repatriated after 21 days onboard due to renal failuredue to multiple renal stones Compensable?No, there is no substantiation that the progression of seafarer’s renal failure was brought about largely by the conditions of his job as an oiler. Chronic renal failure, is neither listed as a disability under Sec. 32 of the POEA Contract; nor an occupational disease under Sec. 32A
non-occupational disease…
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2E repatriated after less than 2 weeks for lung cancerHe died while under treatment Compensable?No, seafarer did not die of a work-related illness. Lung cancer is not one of the listed occupational diseases. At most, only a disputable presumption that lung cancer is work-related.Main cause is tobacco use and there was no showing that the cancer was brought about by his short stint on board the vesselWhile a PEME may reveal enough for the Owners to decide whether a seafarer is fit for overseas employment, it may not berelied upon to inform Owners of a seafarer's true state of health. The PEME could not have divulged the seafarer’s illness considering that the examinations were not exploratory.
non-occupational disease…
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with agency for 9 years...suffered mild bouts of painful urination...given medicine and finished contract...2 months later found to have advanced cancerous tumor on his bladder...operation...reapplied but failed PEME...certified fit to work by his own physician...died after one year...compensable?No, cancer is of unknown origin that stikes people in all walks of life, employed or unemployed...to conclude increased risk, need to show cancer is caused by specific working conditions
non-occupational disease…
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Work-Related Illness
who determines whether illnesswork-related???
company-designatedphysician
third physician
NLRC / Arbitration / courts
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Second Cook repatriated due to edema in the abdominal areaCompany doctor declared him fit to workSeafarer’s private physician declared Grade 1 disability and unfit to resume work as a seaman in any capacityWho’s findings were upheld?Company doctor’s finding of fit to work was upheld by SCIt is beyond cavil that it is the company-designated physician who is entrusted with the task of assessing the seaman’s disability under the POEA contract.
Company Doctor
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employer’s interest is to determine at first instance if work-related or notcompany-designated physician in best position to determine work-relation as he has treated seafarer at lengthdocumentation is important
complete medical records/ certificates (local & abroad)/ expert opinions PEME/master’s reports/ previous employment recordsjob description
important notes on work-relation
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Seafarer was on a POEA contract with no CBA...he suffered acute appendicitis after three days on board vessel ...operated on....repatriated...on arrival in Manila, hospitalized for six days...then discharge fit to work...doctor says not work-related...Are medical expenses abroad and in Manila to be paid by shipowner? Yes because of “disputable presumption of work-relation”. The company-designated physician only declared non-work-relation six days from arrival in Manila...therefore, presumed work-related and shipowner must bear expenses
Issues – medical expenses – disputable presumption
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Seafarer was on a POEA contract with a IBF-FKSU/AMOSUP-KSA CBA (FKSU CBA). He suffered acute appendicitis after three days on board vessel ...operated on....repatriated...on arrival in Manila, hospitalized for six days...then discharge fit to work...doctor says not work-related...Are medical expenses abroad and in Manila to be paid by shipowner? Yes, based on Article 25 of FKSU CBA. Medical attention at company expense for (sickness) up to minimum 60 days and a maximum of 130 days after repatriation... or until declared cured and fit to perform usual work or the degree of disability established with finality.
Issues –- medical expenses - non-work-related
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POEA
Work Related Illness / Injury
UNTIL Fit to Work or disability assessed or
declared not work-related
FKSU CBA
Work Relation NOT needed
ILLNESS: minimum 60 days up to
maximum 130 days
INJURY: for so long as medical attention required or
disability assessed
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POEA (basic wage)
Work Related Illness / Injury:
Maximum of 120 Days
FKSU CBA(basic wage)
Work Relation NOT needed
minimum 60 days up to maximum 130 days
If incapacity due to accident, until cured or disability
assessed
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POEA
Work related injury/ illness
Disability Assessment:POEA Section 32
FKSU CBA
Result of an ACCIDENT
Excluding willful act
Permanent Unfitness Clause
whilst in the employ
Disability Assessment: CBA Appendix III
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Permanent Disability – inability of worker to perform job for more than 120 days, treatment can be extended to 240 daysDisability is not permanent even if 120 days exceeded
Close monitoring of treatment – 30, 60, 90th day
Interim assessment before 120 days (future medical prognosis; estimate of fitness or maximum medical improvement; will he be fit? – what costs? – should we settle
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Begin counting from incident date or symptoms arose
Don’t stop treatment when 120 days reached; exceptions (already Gr. 1; maximum cure)
Treatment can be extended to 240 days –but must be graded before 240 days – otherwise permanently disabled
Don’t disregard other issues – work relation; during term of contract; pre-existing; concealment
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SEAFARER
Union Conciliation AMOSUP
Labor Arbiter
APPEAL10 days with bondUse of CLOG
NLRC Commission
Compulsory Arbitration(National Labor Relations Commission)
Motion for Execution with Labor Arbiter
Metropolitan Trial Court
Regional Trial Court
Court of
Appeals
Notice of Appeal
Civil Courts
Supreme Court
Voluntary Arbitration(National Conciliation and Mediation Board)
Refer to VA if deadlock
Petition for Review on Certiorari
Mandatory ConferencesPosition PaperReplyRejoinder
NCMB: Sole Arbitrator (VA) or
Panel of Voluntary Arbitrators (PVA)
Decision: 10 DAYS FINAL AND EXECUTORY unless TRO issued by CA;usually no bondas no appeal /MR
Motion for ExecutionWith VA or PVA
Writ of Execution/ Garnishment
Order of issuanceof writ
TROPetition for Certiorari
Order of issuance of Writ
(allowed if lack ofjurisdiction or grave abuseof discretion amountingto lack or excess of jurisdiction)
Motion for Reconsideration (MR) with NLRC
Writ of Execution/ Garnishment
TRO
NLRC
10 days
Denial of MR:10 DAYS FINAL AND EXECUTORY unless TRO issued by CA
NCMB
Thank you for your attention
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