Compulsory insurance coverage of a deceased OFW

The compulsory insurance coverage  for overseas Filipino workers (OFWs), including seafarers, was  primarily designed for the protection of the interests and welfare of the worker  and their families.

Under Section 37–A of R.A. No. 8042, as amended by R.A. No. 10022, otherwise known as “Migrant Workers and Overseas Filipinos Act of 1995,” states that each migrant worker, including seafarers,  deployed by a recruitment or manning agency shall be covered by a compulsory insurance policy which shall be secured at no cost to the said worker, which shall remain valid during the duration of the employment and shall cover (1) accidental death, (2) natural death, (3) permanent total disablement, (4) repatriation cost, (5) subsistence allowance, (6) money claims, (7) compassionate visit, (8) medical evacuation, and (9) medical repatriation.

With respect to an OFW’s untimely  death, the minimum insurance benefits payable to   his beneficiaries shall include  (a) at least Fifteen Thousand United States Dollars (US$15,000.00)  for  accidental death  or (b) at least Ten Thousand United States Dollars (US$10,000.00)  for natural death.

The insurance provider shall likewise arrange and pay for the repatriation of the worker’s remains and belongings.

The insurance provider shall also render any assistance necessary in the transport, including but not limited to locating a local and licensed funeral home, mortuary or direct disposition facility to prepare the body for transport, completing all documentations, obtaining legal clearances, procuring consular services, providing death certificates, purchasing the minimally necessary casket or air transport container, as well as transporting the remains including retrieval from site of death and delivery to the receiving funeral home and back to the residence of the worker in the Philippines or to any place in the Philippines in accordance with the worker’s will, if there is any.

The extent of the said benefits shall be regardless of the cost, the primary test of compliance being the complete repatriation of the worker’s  remains  and his personal belongings.

Under the law, any claim arising from accidental death, natural death or permanent total disablement shall be paid without the necessity of proving fault or negligence of any kind on the part of the  migrant worker.

In the case of work-related death of the seafarer, during the term of his POEA-approved contract,  the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of 21 years old  but not exceeding four (4) children.  The amount usually is higher if the death is covered by a Collective Bargaining Agreement (CBA).

The POEA contract 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.

The insurer must pay the seafarer’s beneficiaries  initially the amount of US$15,000.00 for accidental death or US$10,000.00 for natural death  during the contract in the event that there is a legal issue whether or not  the nature of  the death is work-related, such as in cases of suicide, since   there is no necessity of proving fault or negligence of any kind on the part of the  seafarer.

However, Migrante Hongkong  is campaigning against the implementation of the  OFW compulsory insurance. . They noted that HongKong  employers are already required by law to get insurance for their domestic workers. If they don’t get one, and something happens to their worker, employers will be liable and must make sure that they will be responsible for the expenses.

Migrante argues that the new mandatory insurance order will just add to the list of expenses that employers are made to pay for and will merely increase friction between the employer and worker, and might lead to non-rehiring.

 
(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)

Beneficiaries of seafarer’s death compensation

The legal battle for death compensation of the deceased seafarer, in some instances, becomes a  “telenovela” case due to confusion as to the rightful recipients of the death benefits.

Under an employment contract duly approved by the Philippine Overseas Employment Administration (POEA), in the case of work-related death of the seafarer, during the term of his contract,  the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment. The amount usually is higher if the death is covered by a Collective Bargaining Agreement (CBA).

The confusion arise since the terms 'allottee' and 'beneficiary' were  undefined in the previous POEA employment contracts.

Under the current contract, the 'allottee' is the person designated by the seafarer as the recipient of his or her salary allotment.

On the other hand, the beneficiary is the person(s) to whom the death compensation and other benefits are paid and is based on the Philippine law on succession. Thus, not all allottees are automatically considered as beneficiaries.

Simply stated, the right of the allottee, as the terms suggest, is limited to the allotment of the seafarer which is equivalent to at least 80% of his or her monthly basic salary.

Legal or intestate succession takes place if a person dies without a will. And in the absence of heirs instituted in a will, the law vests the inheritance, in the legitimate and illegitimate relatives of the deceased, in the surviving spouse, and in the State in accordance with the rules set forth in the New Civil Code (NCC), Articles 960 and 961.

The law on rules on legal or intestate succession provides that in every inheritance, the relative nearest in degree excludes the more distant ones and that the succession to property by heirs pertains first to the direct descending line (Articles 962 and 978). 

Thus, if a seafarer's mother is his allottee and he dies survived by his wife and one child, the death compensation is paid to the wife and child and not to the mother, in accordance with the Philippine law on succession.

If a widow/ widower  and legitimate children are left, the surviving spouse  is entitled to the same share as that of each of the children.

When the widow/ widower  survives with legitimate parents, the surviving spouse shall be entitled to one-half of the death benefits, and the legitimate parents to the other half. 

If a widow/widower survives with illegitimate children, she/he  shall be entitled to one-half of the death  benefits, and the illegitimate children  to the other half. 

            An illegitimate child shall receive a share equivalent to half of the legitimate child's share. 

If legitimate parents, the surviving spouse, and illegitimate children are left, the parents  shall be entitled to one-half of the death benefits, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow  shall have one-fourth of the death benefits, and the illegitimate children the other fourth. 

An adopted child is entitled   in the same manner as a legitimate child.

In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted by law.

As long as the marriage was not annulled at the time of death, the surviving legitimate  spouse will enjoy the rights regardless of their years of physical separation.

The basis of the rules on intestate succession was explained by the Supreme Court in this manner: “The law of intestacy is founded on the presumed will of the deceased. Love, it is said, first descends, then ascends, and finally, spreads sideways. Thus, the law first calls the descendants, then the ascendants and, finally, the collaterals, always preferring those closer in degree to those of remoter degrees, on the assumption that the deceased would have done so had he manifested his last will. Lastly, in default of anyone called to succession or bound to the decedent by ties of blood or affection, it is in accordance with his presumed will that his property be given to charitable or educational institutions, and thus contribute to the welfare of humanity.” (In the Matter of the Intestate Estate of Cristina Aguinaldo-Suntay vs. Isabel Cojuangco-Suntay (GR No. 183053; June 16, 2010)

 (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)

Post-contract death and medical records on board the vessel

A seafarer’s  illness which caused his post-repatriation death must be properly  documented  during the term of his contract in relation to death compensation benefits. 

As a general rule, the death of the seafarer  should occur during the effectivity of the employment contract in order for the employer to be  liable to his heirs for death compensation benefits. 

Under the  POEA approved employment contract, the employer shall pay his beneficiaries the Philippine Currency equivalent to the amount of Fifty Thousand US dollars (US$50,000) and an additional amount of Seven Thousand US dollars (US$7,000) to each child under the age of twenty-one (21) but not exceeding four (4) children, at the exchange rate prevailing during the time of payment. The amount usually is higher if the death is covered by a Collective Bargaining Agreement (CBA)

 

In Medline Management, Inc. vs. Gliceria Roslinda  (September 15, 2010,  G.R. No. 168715) , the  Supreme Court dismissed the claims for death benefits because  there is no evidence to show that the seafarer’s  illness was acquired during the term of his employment with the company.  

 The seafarer's contract of employment ceased when he was discharged on January 20, 2000, after having completed his contract. He died on August 27, 2001 or one year, seven months and seven days after the expiration of his contract.

The seafarer   did not die while he was under the employ of his employers.The heirs admitted that the seafarer  was discharged not because of any illness but due to the expiration of his employment contract,  Although they stated that  was hospitalized on August 28, 1999, or five months before his contract expired, they presented no proof to support this allegation. Instead, what the heirs  presented were the Medical Certificates  attesting to the fact that  the seafarer  consulted a doctor  complaining of abdominal distention three months after his repatriation.  

The Court noted that this is  not substantial evidence to prove that the seafarer’s  illness which caused his death was contracted during the term of his contract. There should be proper documentation of the seafarer's medical condition while he is on board the vessel. 

The Court stressed that the death of a seafarer  several months after his repatriation for illness does not necessarily mean that: a) the seafarer  died of the same illness; b) his working conditions increased the risk of contracting the illness which caused his death; and c) the death is compensable, unless there is some reasonable basis to support otherwise. 

The  Court noted that  the seafarer  was repatriated not because of any illness but because his contract of employment expired. There is likewise no proof that he contracted his illness during the term of his employment or that his working conditions increased the risk of contracting the illness which caused his death.

The Supreme Court  ruled in  later  case that while it is true that a medical repatriation has the effect of terminating the seafarer's contract of employment, it is, however, enough that the work-related illness, which eventually becomes the proximate cause of death, occurred while the contract was effective for recovery to be had. (Heirs of the late Edwin Deauna vs.  FilStar Maritime Corp.,  G.R. No. 191563 June 20, 2012)

At the time of the seafarer' s death on April 13, 2006 due to Glioblastoma, he was still in the employment of the company. While it is true that  the contract considers a seafarer as terminated when he signs off from the vessel due to sickness, a seafarer remains under the company's employ as long as the former is still entitled to medical assistance and sick pay, and provided that the death which eventually occurs is directly attributable to the sickness which caused the seafarer's employment to be terminated.

Employing the spirit of liberality, the Court  recognized that a medical repatriation case constitutes an exception to the second requirement under Section 20 (A) (1) of the POEA contract, i.e., that the seafarer's death had occurred during the term of his employment, in view of the terminative consequences of a medical repatriation.

 In essence, the Court held that under such circumstance, the work-related death need not precisely occur during the term of his employment as it is enough that the seafarer's work-related injury or illness which eventually causes his death had occurred during the term of his employment.