Disability due to accident

Is the injury suffered by the seafarer the result of an “accident” thereby entitling him to higher disability benefits under the collective Bargaining Agreement (CBA)?

This is the question posed in the April 23, 2014 case of “Carlo F. Sunga v. Virjen Shipping Corporation, Nissho Odyssey Ship Management Pte. Ltd., and Capt. Angel Zambrano” which was decided by the Supreme Court under G.R. No. 198640.

The seafarer in this case, a member of the Associated Marine Officers’ and Seamen’s Union of the Philippines (AMOSUP), entered into a contract of employment as Fitter on board an ocean-going vessel for nine (9) months.  His employment was covered by a collective bargaining agreement (CBA) executed between AMOSUP and his employers.

One time, while on board, the seafarer had to lift a 200-kilogram globe valve from the lower floor of the engine room to its installing position.  As it was being positioned, one of the oilers lost his grip of the valve, thus, causing its whole weight to crash on the seafarer.  At that point, he felt his back snap.  Since then, he started to experience pain which led him to request for repatriation which was accordingly granted.

Reporting to the company-designated doctor, the seafarer underwent medical examination and was issued medical certificates: the first, recommending a Grade 8 disability based on the POEA-Standard Employment Employment Contract (SEC), and the second, a disability grading of 25% in accordance with the CBA.  His employers offered the amount of US$16,795.00 as full settlement for his disability benefits based on the POEA-SEC but he rejected it and demanded that his benefits be based on the disability grading of 25% based on the CBA.  His employers claimed that he failed to present any proof that his disability was the result of an accident and it was simply an illness r an anatomical defect.

The arbiter and the NLRC ruled in favor of the seafarer, basing his disability benefits on the CBA.  The Court of Appeals ruled otherwise and applied only the POEA-SEC, noting that the back injury which the seafarer suffered was reasonably anticipated since carrying heavy objects can cause injury and that lifting and carrying heavy objects are part of his duties as Fitter.  There was no mishap, occurrence or fortuitous event when the injury was incurred.

The Supreme Court affirmed the rulings of the arbiter and the NLRC and found that the seafarer’s injury was the result of the accidental slippage in the handling of the 200-kilogram valve based on circumstantial evidence.  the High Court observed that the seafarer did not incur the injury while solely performing his regular duties but an “intervening event transpired,” i.e., when the oiler lost his grip of the valve, which brought upon the injury on the seafarer.  Such an incident cannot be considered foreseeable nor can it be reasonably anticipated.

The duty of the seafarer here was not to routinely carry a 200-kilogram valve singlehandedly, but only to change the valve.  An “accident” therefore, pertains to an unforeseen event in which no fault of negligence attaches to the defendant.  As defined in Black’s Law Dictionary, “accident” is “an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated.”  As such, the seafarer’s disability benefits fall within the Collective Bargaining Agreement (CBA) coverage, which provides that “A seafarer who suffers permanent disability as a result of an accident whilst in the employment of the Company shall be entitled to compensation according to the provisions of this Agreement.”   

#Article of Atty. Augusto R. Bundang of SVBB Law orignally published in the Tinig ng Marino July August 2014 issue. 

The Case of the Missing Doctor’s Declaration

The company-designated physician is duty-bound to timely issue to a repatriated sick or injured seafarer a declaration/ certification on his fitness for sea-service or a final disability assessment. Failure to do so would give rise to the conclusion that the seafarer’s disability is total and permanent.

In the case of Dario A. Carcedo (substituted by his wife Priscilla Carcedo) vs. Maine Marine Philippines, Inc. and/or Ma. Corazon Geuse-Songcuya (G.R> No. 203804, April 15, 2015), Carcedo, the seafarer, was medically repatriated due to a wounded foot. After his right big toe was amputated, the company-designated doctor recommended an impediment disability grading of 8 percent loss of the toe. Unfortunately, the suffering of Carcedo did not end as he again underwent medical procedure on his foot. He then sued for total and permanent disability benefits, sickness allowance and other damages. In the meanwhile, a doctor of his choice again operated of him and removed a secont toe. 

The arbiter supported the company-designated doctor’s findings while the NLRC, on appeal, awarded the Carcedo full disability benefits. The Court of Appeals however, upheld the 8% disability grading made by the company-designated physician in accordance with the CBA. Before the Supreme Court, Carcedo’s position was sustained and he was awarded the full disability compensation.

The Supreme Court made it clear that the seafarer’s right to disability benefits is governed not only by the Collective Bargaining Agreement and the POEA-Standard Employment contract enterd into by the parties, but also the provisions on disability of the Labor Code and the Amended Rules on Employee Compensation (AREC) implementing Title II, Book Code concept of permanent total disability applies to seafarers whereby it is not the injury which is compensated in a disability compensation matter, but rather the incapacity to work resulting in the impairment of one’s earning capacity.

The High Court pointed out that the declaration/ certification of the company-designated physician as to (a) the fitness of the seafarer to engage in sea duty or (b) his final disability assessment, during the 120-day or 240-day treatment period allows the employer to determine whether the seafarer is fit for sea duty or permanently disabled and the degree of such disability. The absence of such declaration/ certification transforms the temporary total disability status of the seafarer to permanent total disability, regardless of the disability grade. Thus, citing the case C.F.Sharp Management vs. Joel D. Taok (G.R. No. 193679, July 18, 2012), a seafarer may sue for total and permanent disability benefits if, among others, (1) the company-designated physician failed to issue said declaration even after lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability hence, justify an extension of the period to 240 days, and (2) 240 days had lapsed without any certification being issued by the company-designated physician.

The Supreme Court found the 8% disability grading assessment of the company-designated physician to be merely an interim one and not final since Carcedo continued with his medical treatments beyond the 120-day period and the extended temporary disability period of after 120-day period but less than 240 days. No definitive impediment rating of Carcedo’s disability was ever given. In the same token, the said 8% disability grading assessment did not include a certification of the seafarer’s fitness for sea duty, which ought to be the job of the company-designated physician.

#Article of Atty. Augusto R. Bundang of SVBB Law orignally published in the Tinig ng Marino July August 2015 issue.  

The Employers’ Joint & Solidary Liability

What is the liability of the foreign principal and the manning agent for any and all claims arising out of an employer-employee relationship or by virtue of any law or contract involving a seafarer?  It is “joint and several”, according to the case of Sealanes Marine Services, et al. v. Arnel G. dela torre” which was decided by the Supreme Court last February 18, 2015.  “Joint and several liability”, in simple terms, is a form of liability where a creditor may hold answerable any of his debtors for his entire claim.

In said Sealanes case, the seafarer was hired as able seaman by a local manning agent in behalf of its foreign principal.  Unfortunately, the seafarer figured in an accident on board and injured his lower back thus, necessitating his medical repatriation.  The company-designated doctor assessed him with a Grade 11 disability and was informed of the same only after 240 days since his accident.  As such, the seafarer filed a disability claim, among others.  His claim was granted by the Arbiter and sustained by the NLRC, the Court of Appeals and the Supreme Court.

The High Court noted that under Section 10 of Republic Act No. 8042, otherwise known as the “Migrant Workers and Overseas Filipinos Act of 1995”, as amended by Section 7 of Republic Act No. 10022, the liability of the principal and the recruitment agency for all claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damage, shall be joint and several.  Such liability which shall be incorporated in the overseas employment contract, shall be a condition precedent to the contract’s approval, and shall continue during the contract’s entire duration.

The performance bond filed by the recruitment agency shall answer for all money claims or damages that may be awarded to the worker.  This being the case, the Supreme Court pointed out in the earlier case of Varorient Shipping Co., Inc. v. NLRC (G.R. No. 164940, November 28, 2007) that even the certificate of non-forum shipping filed by a manning agent in a court case is sufficient to cover and benefit its foreign principal.  The POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers (POEA Rules) ordain that the local manning agent is solidarily liable for every obligation that the foreign principal may incur against the local worker.  The foreign principal does not have any capacity to act in the Philippines unless through its accredited local manning agent.

Significantly, if the recruitment agency is a juridical being, the corporate officers and directors shall also be jointly and solidarily liable with the corporation.  The High Court added that every applicant for a license to operate a seafarers’ manning agency shall, in the case of a corporation, submit a written application together with, among others, a verified undertaking by officers, directors, and partners that they will be jointly and severally liable with the company over claims arising from employer-employee relationship.  The POEA Rules so provide for this as pointed out in the Varorient case.  Each of the solidary debtors, insofar as the creditor is concerned, is the debtor of the entire amount; it is only with respect to his co-debtors that he is liable to the extent of his share in the obligation. 

*article written by SVBB Senior Partner Atty. Augusto Bundang originally published at Tinig ng Marino