Timeliness of the third doctor referral in seafarer’s cases

The POEA Contract does not require a specific period within the parties in a case involving a seafarer’s disability claims may seek the opinion of a third doctor.  They may do so even during the mandatory conference before the labor tribunals.

          This was the recent ruling of the Supreme Court in the case of Ilustricimo vs. NYK-Fil Shipmanagement (G.R. No. 237487 June 27, 2018) that involved a seafarer that was diagnosed with bladder cancer.

          The court ruled that the company-designated doctors’ assessment is not always binding in cases of non-referral to a third doctor of disability claims of seafarers.

          Legal issues on compliance with the third doctor referral procedure is based on Section 20(A) (3) of the POEA-Standard Employment Contract which provides that if a doctor appointed by the seafarer disagrees with the assessment of the company-designated doctor, a third doctor may be agreed jointly between the employer and the seafarer, and the third doctor’s decision shall be final and binding on both parties.

          Referral to a third doctor became a mandatory procedure as a consequence of the POEA contract provision that the company-designated doctor’s assessment should prevail in case of non-observance of the third doctor referral provision in the contract.  Stated otherwise, the company can insist on its disability rating even against the contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking for a referral to a third doctor who shall make his or her determination and whose decision shall be final and binding on the parties.

          The Supreme Court downplayed the employer’s argument that the seafarer’s failure to communicate his separate medical certification prior to the filing of the complaint not only constitutes a breach of his contractual obligations under the POEA contract, but also renders the complaint premature and is a ground for the dismissal of his claim for disability benefits.

          The Court in said case held that the employers do not deny receiving the seafarer’s letter despite their insistence that he failed to activate the third doctor provision.

          Infact, employers repeatedly insisted that the letter was not meant to dispute the company-designated doctor’s assessment, but rather to inform them that petitioner needed continued medical assistance.  On the assumption that the seafarer indeed “belatedly” informed the employer of the opinion of his second doctor and his intent to refer his case to a third doctor, the fact remains that they have been notified of suchintent.

          The instant Ilustricimo vs. NYK-Fil case emphasized that the POEA Contract does not require as specific period within which the parties may seek the opinion of a third doctor, and they may do so even during the mandatory conference before the labor tribunals.   

          Accordingly, upon being notified of the seafarer’s intent to dispute the company doctor’s findings, whether prior or during the mandatory conference, the burden to refer the case to a third doctor has shifted to the respondents.

          Informerly Inc. Shipmanagement Incorporated vs. Rosales (438 SCRA 30) reiterated that when the seafarer challenges the company doctor’s assessment made by his own doctor, the seafarer shall so signify and the company thereafter carries the burden of activating the third doctor provision:

          This, the employers failed to do so, and the seafarer cannot be faulted for the non-referral.

          Consequently, the company-designated doctors’ assessment is not binding.

          (Atty. Gorecho heads the seafarers’ division of the Sapalo Velez Bundang Bulilan Law Offices. For comments, email info@sapalovelez.com, or call 0917-502-5808 or 0908-866-5786).

Seafarer’s loans and prohibited recruitment acts

Despite the perceived high income they receive, it becomes difficult for some Filipino  seafarers  to make the earnings last for the period of vacation and examinations, which in recent times can be inordinately long.

Not all seafarers have the privilege of getting redeployed  immediately after their disembarkation making it  problematic to have any cash reserves.

Difficult times and immediate need for money will lead  seafarers to people known as loan sharks to be able to finance certain expenses.

                   

Loan sharks can be a person or entity that allows you to borrow a certain amount of money and charge with higher interest rate, usually above established legal rates. They are also illegal financing companies that usually targets people who are in desperate need of money

Taking advantage of such situation,  there are  employers or manning agencies that  impose  a compulsory and exclusive arrangement whereby a seafarer is required to avail of a loan from a specifically designated institution, entity, or person.

Such act is  considered as one of the prohibited acts    under the Amended Migrant Workers and Overseas Filipinos Act (AMWA) or  R.A.  No. 10022 and the  POEA rules  in relation to the  recruitment and employment of Filipino seafarers wherein the company or person   can be held criminally or administratively  liable.

The POEA’s revised rules was passed in accordance with the government’s policy,   among others, to uphold the dignity and fundamental human rights of Filipino seafarers navigating foreign seas, and promote full employment and equality of employment opportunities for all.

Other prohibited acts that involve loans  include (a)  withholding or denying travel or other pertinent documents from an applicant seafarer for monetary or financial considerations, or for any other reasons, other than those authorized under the Labor Code; (b)   withholding of seafarer’s salaries or remittances, SSS contributions and loan amortization or shortchanging/reduction thereof without justifiable reasons ; (c)  granting a loan to a seafarer with interest exceeding eight percent (8%) per annum which will be used for payment of legal and allowable fees and making the seafarer issue, either personally or through a guarantor or accommodation party, post-dated checks in relation to the said loan; and (d) refusing to condone or renegotiate a loan incurred by the seafarer after the latter’s employment contract has been prematurely terminated through no fault of his/her own.

Under  the AMWA,  any person found guilty of any of the prohibited acts shall suffer the penalty of imprisonment of not less than six (6) years and one (1) day but not more than twelve (12) years and a fine of not less than Five hundred thousand pesos (P500,000.00) nor more than One million pesos (P1,000,000.00).

Under the 2016 Revised POEA Rules and Regulations, penalties for  the  offenses may vary based on the frequency of violations from  suspension of license ( two months to two years)  to its cancellation on the fourth offense.

         

Money claims arising from recruitment violation may be awarded in addition to the administrative penalties imposed. In lieu of the penalty of suspension of license, the POEA may impose the penalty of fine which shall be computed at Fifty Thousand Pesos (P50,000.00) for every month of suspension. 

The penalty of cancellation of license shall be imposed by the POEA upon a respondent  found liable for committing an offense, regardless of the number or nature of charges, against five (5) or more workers in a single case.

All cases  shall be barred if not commenced or filed within three (3) years after such cause of action accrued.

(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)