The ‘David and Goliath’ battle for seafarers’ claims

Gorecho

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, he is mentally and emotionally stressed.

Constantly exposed to fluctuating temperatures caused by variant weather changes of extreme hot and cold as the ships cross ocean boundaries, not to mention harsh weather conditions, the risks of his getting killed, injured or ill are high.

Every labor dispute is a David and Goliath battle as it involves two opposing parties: the worker on one side and the management on the other, for monetary claims for disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages.

Labor litigation takes years before it reaches the Supreme Court. In most cases, the elevation of the records alone from the NLRC/NCMB to the Court of Appeals or

Supreme Court will take several years. The proceedings in the appellate court will entail further delay.

In cases of seafarers with medical conditions, some incur huge debts to sustain their medication while others die before the decision by the Supreme Court is released forcing the seafarers into accepting an ex-gratia, miniscule amount Companies have the legal remedies to prolong the case, but one cannot reclaim the life of the deceased claimant.

Companies usually utilize the phrase “ benefits even beyond the claims they are actually entitled ” to sanitize the problematic legal battle for seafarer’s compensation.

Valid claims, employers argue, necessarily must follow what the POEA contract dictates: a contract that contains terms and conditions formulated more favorable to his employer and is littered with ambiguous provisions, generalizations, technicalities that he does not understand.

Under the 1996 POEA Standard Employment Contract (SEC), for disability or death to be compensable, it was sufficient that the seafarer suffered injury or illness during the term of his employment. The cause of illness or death is immaterial.

However, through the lobbying of the principals and their manning agencies, the restrictive clause “work-related” was added under Section 20 (B) of the 2000 POEA SEC to limit their liabilities. The 2000 POEA SEC defined “work-related injury” as “injury (ies) resulting in disability or death arising out of and in the course of employment” and “work-related illness” as “any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of the contract”.

Being included in the list is not enough, since all of the following conditions must be satisfied: (a) the seafarer’s work must involve the risks described; (b) the disease was contracted as a result of the seafarer’s exposure to the described risks; (c). the disease was contracted within a period of exposure and under such other factors necessary to contract it; and (d) there was no notorious negligence on the part of the seafarer.

These same definitions were reiterated in the 2010 POEA SEC.

Two elements must concur for an injury or illness to be compensable. First, that the injury or illness must be work-related; and second, that the work-related injury or illness must have existed during the term of the seafarer’s employment contract.

The first requirement appeared in the 2000 and 2010 POEA SEC but is absent in the 1996 version.

Through such restrictive provisions of the POEA SEC, claims for disability compensation became a legal battleground, especially in instances when seafarers do not receive full compensation that are legally entitled to have.

Such emergence of cases is attributable to the fact that the seafarer’s employer does not hesitate to harness its immense resources to limit its liability.

In denying, if not limiting, the seafarer’s claims, the employer usually raise the misleading argument that the POEA mandated that disability can only be assessed by the company-designated physician based on the disability grading system considering that the latter had the time and the opportunity to constantly monitor the health and physical condition of the seafarer.

However, the Supreme Court stressed that their medical assessment “is not the alpha and the omega of the seafarer’s claim for permanent and total disability.” (Elburg Shipmanagement Phils. vs. Quiogue, Jr, G.R.No.211882 July 29, 2015).

The problem can be partly attributed to the Supreme Court’s observation on the proliferation of obviously biased company doctor whose “findings cannot be taken as gospel truth” and “are palpably self-serving and certainly could not be considered independent” as their “loyalty rests completely upon the company they serve” (UPL/HAL vs . Beseril, 487 SCRA 249).

Thus, the POEA contract does not preclude the seafarer from getting a second opinion as to his condition for purposes of claiming disability benefits.
In reality, the grading system assessment under the POEA Contract is not reflective of the benefits that should be given to the seafarer.

There are medical conditions that are classified as partial disability (between Grade 2 to 14) but in essence should have been considered as total permanent (Grade 1).

Employers will never hire a seafarer who suffered complete loss of the sense of hearing on both ears (Grade 3), loss of speech due to injury to the vocal cord (Grade 9), total loss of a leg or amputation at or above the knee (Grade 3), paralysis of one upper extremity (Grade3) , or loss of one foot at ankle joint or above (Grade 6), loss of ten fingers of both hands (Grade 3) or amputation between wrist and elbow joint (Grade 5), or total blindness of one eye and fifty percent (50%) loss of vision of the other eye will never be employed due to visual impairments. (Grade 5).

Fit-To Work certifications are given even to seafarers who are still not cured or in essence can no longer be employed such as those who suffered from heart attacks, aneurism or stroke.

From the business point of view, it will be risky for the employers to let the seafarer be re-employed since the harsh working environment might only aggravate his fragile condition and in the end expose the company to more serious insurance liabilities.

Thus, Supreme Court’s consistently ruled that “it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do. (Valenzona vs. Fair Shipping Corporation, 659 SCRA 642)

Unless their definition of “valid claims” is changed, through the deletion of the “work-related” clause, and through the reversion to the old 1996 POEA Contract , the denials of seafarers’ claims will continue.

The compensation scheme should be less restrictive and more realistic, Otherwise, their only recourse is to seek legal assistance from lawyers of their own choosing.

Conversely speaking, give the seafarers what they should receive, and employers will not be hounded by legal cases.
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Atty. Dennis R. Gorecho is a graduate of UP College of Law (1998) and is the Junior Partner of Sapalo Velez Bundang Bulilan (SVBB) law offices who heads the seafarers’ division.

Under his leadership, the SVBB actively champions seafarers’ rights through the holding of year-round, nationwide seminars to inform seafarers of their rights and legal measures to enforce them.

He is the 2016-17 president of the Maritime Law Association of the Philippines (MARLAW). He is a legal commentator on maritime issues on print, radio and TV. A co-anchor of the radio program Bantay OCW Usapang Marino aired over Radio Inquirer every Wednesday 10:30am to 12noon.

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