Mama’s boy and psychological incapacity

A  marriage may have failed because  a seafarer acted as a Mama’s boy, but it cannot be declared void ab initio on the ground of psychological incapacity. 

One of the unfortunate consequence of seafarers working away for several months is the falling out of marriage.  

For couples desperate to find a way out of their troubled marriages,  some choose to undergo  trying and tedious legal process where  they  have to incur many expenses: the cost of litigation, filing fees, and even the professional fees.

The protagonists in most cases  are in reality simply unwilling to work out a solution for each other's personality differences, and have thus become overwhelmed by feelings of disappointment or disillusionment toward one another. Sadly, a marriage, even if unsatisfactory, is not a null and void marriage .

In Republic vs. Cabantug-Baguio, (G.R. No. 171042,June 30, 2008), the wife  noticed after their marriage  that every time she conversed with the seafarer , he always mentioned his mother and his family, and she soon realized that he was a mama’s boy. And she noticed too that when she would call up the seafarer  at his parents’ house and his mother was the one who answered the call, she would deny that he was around.

On the insistence of his mother, the seafarer’s  monetary allotment was shared equally between her and the wife. Later on, the seafarer  declared in his employment records that he was single and named his mother as principal allottee.

Less than three years  after they contracted marriage, the wife filed a complaint for declaration of nullity of marriage on the ground of the seafarer’s  psychological incapacity to comply with the essential marital duties and obligations under Articles 68-70 of the Family Code

In his medical report, the  clinical psychologist noted  that the seafarer’s  personality disorders including his being a mama’s boy are serious, grave, existing already during the adolescent period and incurable . He concluded that the seafarer appeared to be dependent upon his family and unable to establish a domicile for his family and to support his family.

In dismissing the case,  the Supreme Court ruled that the mere showing of irreconcilable differences and conflicting personalities does not constitute psychological incapacity. Nor does failure of the parties to meet their responsibilities and duties as married persons

It is essential that the parties to a marriage must be shown to be insensitive to or incapable of meeting their duties and responsibilities due to some psychological (not physical) illness, which insensitivity or incapacity should have been existing at the time of the celebration of the marriage even if it becomes manifest only after its solemnization.

It is downright incapacity, not refusal or neglect or difficulty, much less ill will, which renders a marriage void on the ground of psychological incapacity. The root cause thereof must be medically or clinically identified. There must thus be evidence to adequately establish the same.

 Psychological incapacity must be characterized by: (a) gravity (i.e., it must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage); (b) juridical antecedence (i.e., it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage); and (c) incurability i.e., it must be incurable, or even if it were otherwise, the cure would be beyond the means of the party involved. (Cruz vs. Cruz (October 11, 2017 G.R. No. 201988),

The Constitution sets out a policy of protecting and strengthening the family as the basic social institution and marriage as the foundation of the family. Marriage, an inviolable institution protected by the State, cannot be dissolved at the whim of the parties.

 In petitions for the declaration of nullity of marriage, the burden of proof to show the nullity of marriage lies on the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Malaria in the seafaring industry

It is   a well-known fact that seafaring is one of the most hazardous occupations, in regards to personal health and safety concerns of seafarers.

The work on seagoing vessels is long associated with an increased risk of loss of health and life.  Because of their nature of work, seafarers are bound to visit many ports in different parts of the world and are thus exposed to various pandemic and epidemic diseases,  sometimes with fatal consequences.

Falling ill at sea or at a port far away from home can be a very difficult situation for the seafarer and his family and a challenge for the remaining crew and the ship operator

Apart from accidents, seafarers are prone to certain serious diseases and health hazards due to the nature of onboard work, change in climatic conditions, type of cargo carried, working hours, materials being handled, epidemic and endemic diseases, and  personal habits.

 One of the infections that a seafarer may suffer while on board the vessel  is malaria which  is predominantly a disease affecting Africa, South and Central America, Asia, and the Middle East.

Malaria is a preventable, life-threatening disease that can disrupt the blood supply to vital organ.

The plasmodium parasite which causes malaria is spread by the bite of infected female Anopheles mosquitoes and cannot be transmitted directly between humans.

Malaria as one of the listed  infectious disease that a seafarer may suffer during the effectivity of his contract  is  a disease resulting from the presence and activity of pathogenic microbial agents in the body. Infectious diseases are recognized as an occupational hazard in seafaring and are closely connected to the conditions of working and living onboard.

For a sick  seafarer to be entitled to medical benefits under the  POEA-Standard Employment Contract (SEC),   he must have suffered work related illness which is defined as any sickness resulting to disability or death as a result of one of the  twenty-four (24) occupational diseases listed under Section 32-A of the said contract. .

It is also  not sufficient to simply establish that the seafarer's illness or injury has rendered him permanently or partially disabled; it must also be shown that there is a causal connection between the seafarer's illness or injury and the work for which he had been contracted .

Symptoms are flu-like, including : fever (often exceeding 40°C), chills, malaise. nausea and vomiting, fatigue, myalgia (muscle pain), headaches, and sweating.  

The symptoms of the most life-threatening type of malaria are usually experienced between one week and two months after infection.  A typical attack lasts 8-12 hours.

 On rare occasions, the symptoms do not occur until 3 months after the infection in case of falciparum malaria, and more than 1 year after for the 3 other types.

A seafarer  with severe falciparum malaria may show signs of  confusion, drowsiness, extreme weakness and may develop cerebral malaria with convulsions, an unrousable coma and rapid death.

Since one of the requirement for an illness to be compensable is that the seafarer suffered said illness during the effectivity of the POEA contract, it is imperative that his condition or symptoms  must be documented while he is on board the vessel.

Otherwise, his claim for disability benefits might be denied due to failure to prove that said illness occurred while his contract is still in force.

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Smoking and stress

Smoking , by itself, cannot  be a factor that bars compensation for the  seafarer’s death due to  illnesses such as aneurism.

 The tendency of seafarers to smoke is  often associated with  the stress experienced at sea.

 Seafarers are exposed to extreme weather conditions: rough seas and storms result in the rolling and pitching of the ship, leading to an unstable environment that makes physical work difficult.

Most seafarers are exposed to ongoing elevated stress levels something which has a negative impact on physical and mental health not to mention that it can lower work performance.  There might be variations of stress levels due to the type and nature of the work depending on the duties that have been assigned to the seafarer.

 Extremely high number of working hours over a lengthier period of time combined with lack of      sleep can elicit chronic fatigue, health problems and safety risks on the vessels.

 What makes the job more difficult, aside from exposure to fluctuating temperatures caused by variant weather changes, the job obviously entails laborious manual tasks conducted in a moving ship, which makes for increased work-related stress.

 In most cases, employers use as a defense the seafarer’s admission of being smoker  to deny claims for disability or death benefits  as they argue that genetic predisposition has caused his ailment and that his smoking habits hastened its development.

In the case of Dohle vs. Heirs of Gazzingan (G.R. No. 199568, June 17, 2015) the Supreme Courtstressed that  smoking, by itself, can not  be a factor that bars compensation for the illness such as  dissecting aneurysm.   

While smoking may contribute to the development of the disease, it is not the only possible cause. Other factors such as working and living under stressful conditions also contribute to its development.

 Aortic dissection, also called dissecting aneurysm, is a potentially life threatening condition in which there is bleeding into and along the wall of the aorta, the major artery leaving the heart. The condition starts with a tear in the wall of the major artery carrying blood out of the heart and as the tear extends along the wall of the aorta, blood enters the aortic wall and "dissects" or separates the layers of the aorta from one another which leads to aortic rupture or decreased blood flow to the organs. This can then result in heart attacks, strokes, paralysis, and renal failure among other medical conditions.

The Supreme Court noted that the  ailment’s risk factors, which include but are not limited to aging, connective tissue and rare genetic disorders, atherosclerosis, inflammation, trauma, high blood pressure, heart surgery/procedures, and pregnancy, do not seem to be direct causes of the disease, such that having one makes the chances of getting the condition higher but does not always lead to aortic dissection.

The Supreme Court then stressed that smoking habit cannot be used to deny the claims as  the exact cause of aortic dissection (as well as other illnesses)  is still unknown and remains under investigation.

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)

Spine injuries at sea

Back pains or spine injuries or illnesses are inherent in a seafarer’s  job characterized by excessive and strenuous physical activities, such as lifting, carrying, pushing, pulling and moving heavy equipment and materials.

The injury or illness may occur over a period of time or on the spot depending upon the physical strength and posture of the workers as well.   

The common back injuries or illness include lumbar spondylosis, lumbar radiculopathy, multi-level disc dessication, posterior disc herniation, or canal stenosis.

In compensation  claims, employers usually  argue that the nature of disability and the benefits are determined by the manner they are graded or classified under the POEA contract and not by the number of days that a seafarer is under treatment.  If a seafarer has an injury or medical condition that is not considered a Grade 1 impediment, then he cannot claim that he is totally or permanently disabled. To allow the contrary, they argue, would render naught the schedule of disabilities.

Under the POEA contract, Grade 1 disability grading will be given if a seafarer suffered  injury to the spinal cord  if (a) it  makes walking impossible even with the aid of a pair of crutches or (b) results to incontinence of urine and feces.

Partial disability  benefits will be given if the assessment is as follows: (a) Grade 4 if it caused walking impossible without the aid of a pair of crutches; (b) Grade 6  if he suffered fracture of the dorsal or lumber spines resulting severe or total rigidity of the trunk or total loss of lifting power of heavy objects ; (c) Grade 8 if he  suffered moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk; and (d) Grade 11 if he  suffered slight rigidity or one third (1/3) loss of motion or lifting power of the trunk.

In some instances, any seafarer who suffered these  medical conditions is in essence should be declared total permanent disabled, and not merely partial temporary. The findings and the disability grading of a company-designated physician could be set aside in the determination of disability compensation.

The  Supreme Court  usually considers the glaring apparent inconsistency in the company doctor's medical report between the classification of seafarer's disability and the fact that he had been unable to work for long period of time, which condition makes his disability permanent and total. (Crystal Shipping, Inc. vs. Natividad, 473 SCRA 559).

Permanent total disability means disablement of a seafarer 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. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work. (Seagull Maritime Corporation vs. Dee, 520 SCRA 109).  

If those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally or permanently disabled (Kestrel Shipping Co., Inc. v. Munar, 689 SCRA 795)

Companies cannot deny the fact that a seafarer suffering from any of these medical conditions will be considered more of a liability than an asset if he is allowed to go on board the vessel.He would no longer be able to perform strenuous activities such as the rigorous duties of a seafarer.

The Supreme Court acknowledge that  symptoms following surgery are relieved only to recur after a variable period. The causes may include insufficient removal of disc material and further extrusion, rupture of another disc, adhesions about the nerve root and formation of an osteophyte at the site of removal of bone. Even a successful disc removal  does not guarantee a permanent cure as fibrosis can produce a dense constricting scar tissue, which is presumed to be a prime cause of recurrent symptoms(NFD . v. Illescas, G.R. No. 183054, September 29, 2010.)

Surgery can never stop the pathological process nor restore the back to its previous state. Similar poor results have been found with repeated attempts at surgical intervention for the relief of chronic low back pain. If long term relief is desired, continued mechanical stress of postural or occupational type must be avoided.

Resuming a seafarer’s  usual work, which includes increased loading, twisting, or bending and extension of the back, will further expose him  to dangers of  aggravating his medical condition. 

(Atty. Gorecho heads the seafarers’ division of the  Sapalo Velez Bundang Bulilan  law offices. For comments, email info@sapalovelez.com, or call 09175025808 or 09088665786)