Osteoarthritis as a compensable seafarer’s illness

Degenerative changes of the spine, also known as osteoarthritis, is considered as a work-related.   due to the seafarer’s performance of  tasks that clearly involved unduly heavy physical labor  and  joint   strain.  

A job of a seafarer is not exactly a walk in the park.  He performs duties and responsibilities as instructed or as necessary. The job obviously entails laborious manual tasks conducted in a moving ship, which makes for increased work-related stress aside from exposure to fluctuating temperatures caused by variant weather changes. 

The compensability of osteoarthritis was favorably ruled upon by The Supreme Court in the case of   Oscar  D.  Gamboa vs. Maunlad Trans. Inc ( G.R. No. 232905, August 20, 2016)

Seafarer  Gamboa  entered into a nine (9)-month contract of employment as Bosun on board the vessel, MV OrienteShine, a cargo vessel transporting logs from Westminster, Canada to several Asian countries

During the voyage, the seafarer slipped and lost his footing while going down the ship's galley, which caused awrithing pain on the upper left side of his back. The ship master initially  gave him Salonpas for his back. Due to  experienced back pain and difficulty in breathing,   the captain  was prompted to disembark him for medical consultation in Canada.  While the foreign port doctor  took note of the seafarer's back pain, it was his diagnosed asthma thatprompted the said doctor to declare him unfit for duty.  The seafarer  was medically repatriated

Subsequent check-ups in the Philippines noted   that the seafarer was suffering from "Degenerative  Changes, Thoracolumbar  Spine" and was found to have a "metallic foreign body on the anterior cervical area noted on x-ray”. The company-designated physician opined this illness  as  not related to the cause of the seafarer's repatriation.

The company denied liability for payment of the seafarer’s disability benefits. They alleged  his osteoarthritis  was declared to be not work-related by the specialist since it may have occurred overtime and could not have developed during his 22-day stay on board the vessel, hence, was a pre-existing condition.

The entitlement of a seafarer on overseas employment to disability benefits is governed by law, by the parties'contracts, and by the medical findings.

The POEA contract  governs the procedure for compensation and benefits for a work-related injury or illness suffered by a seafarer on board sea-going vessels during the term of his employment contract. A "work-related" illness is defined as "any sickness as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied.

Osteoarthritis is associated with a breakdown of cartilage in joints and can occur in almost any joint in the body. It commonly occurs in the weight-bearing joints of the hips, knees, and spine. Osteoarthritis occurs when the cartilage that cushions the ends of bones in the  joints gradually deteriorates. Cartilage is a firm, slippery tissue that permits nearly frictionless joint motion. The slick surface of the cartilage becomes rough. Eventually, if the cartilage wears down completely, one  may be left with bone rubbing on bone.

At any rate, in medical parlance, spinal disc degeneration/desiccation and osteoarthritis can be taken as the same. Degenerative disc disease is a spinal condition caused by the breakdown of the intervertebral discs which results in the loss of flexibility and ability to cushion the spine.33 When discs degenerate, the vertebral bodies become closer together and this increased bone on bone friction causes the wearing away of protective cartilage and results in the condition known as osteoarthritis.34 The degenerating discs place excessive stress on the joints of the spine and the supporting ligaments, which, overtime, can lead to the formation of osteoarthritis.35 Osteoarthritis is a stage of degenerative disc disease. (CENTENNIAL TRANSMARINE, INC vs PASTOR M. QUIAMBAO, G.R. No. 198096               July 8, 2015) 

There are conditions that should be met before an illness, such as osteoarthritis, can be considered as pre-existing, namely: (a) the advice of a medical doctor on treatment was given for such continuing illness or condition; or (b) the seafarer had been diagnosed and has knowledge of such illness or condition but failed to disclose the same during PEME, and such cannot be diagnosed during the PEME. The Supreme Court ruled that  none of these conditions had been established in this case.

The Court explained that  osteoarthritis is a listed occupational disease if the occupation involves any of the following:

a.       Joint strain from carrying heavy loads, or unduly heavy physical labor, as among laborers andmechanics;

b.      Minor or major injuries to the joint;

c.       Excessive use or constant strenuous usage of a particular joint, as among sportsmen,particularly  those  who  have  engaged  in  the  more  active sports  activities;

d.      Extreme temperature changes (humidity, heat and cold exposures) and;

e.       Faulty work posture or use of vibratory tools

The seafarer, as Bosun of the principal’s  cargo vessel that transported logs, undeniably performed tasks that clearly involved unduly heavy physical labor  and  joint   strain.  

The  Court declared that the seafarer's sustained back injury was not the result of an accident but nonetheless ordered the payment of his disability in accordance with the provisions of the Collective Bargaining Agreement (CBA.)

(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)

Seafarers' claims to be delayed by placing awards in Escrow

 Manning agencies are pushing for the inclusion of  an escrow provision in the proposed Magna Carta which  is a mere dilatory tactic in the execution of the seafarers’  monetary awards.

 The provision  in essence aimed to amend the labor code that will have significant impact on labor claims governing the immediately “final and executory” nature of decisions issued by National Labor Relations Commission (NLRC) and the National Conciliation and Mediation Board (NCMB).  

The manning agencies resurrected what ANGKLA Partylist  earlier  filed  as House Bill  No. 5430 on February 2015 during the 16^th Congress   wherein the proceeds of execution shall be deposited in an escrow account with an escrow agent designated by the NLRC  or the NCMB.    

The seafarer  will wait for longer years before they receive the NLRC/NCMB  award , mostly  for cases involving monetary claims for  disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages. 

The manning agencies echoed ANGKLA’s rationale for the earlier Bill to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially or totally reverses the monetary judgment award.

The proceeds shall remain in escrow until such time the finality of the decision issued by the appropriate appellate court is obtained..

The proceeds shall only be released after issuance of an entry of judgment by the appropriate appellate court and upon issuance by the NLRC or the NCMB, after motion of the proper party, of an order authorizing the release of proceeds of execution.

ANGKLA pointed out that the amendment is proper as the problem of the immediately “final and executory” nature of decisions gains greater relevance considering the following factors: (a) the complainant will insist on the execution of the NLRC or NCMB decision despite the appeal; (b) even if the appellate courts overturn or modify the NLRC or NCMB decision, there is little hope of recovering anything through restitution; (c) more legal costs and expenses will be incurred in pursuing the case through the appellate courts and in applying for restitution of the judgment award. 

Every labor dispute is a David and Goliath situation  as it  involves two opposing parties:  the worker on one side and the management on the other.  

Constantly exposed to fluctuating temperatures caused by variant harsh weather conditions, the risks of his getting killed, injured or ill are high. 

When he sustains injury, illness or lose his life, seldom does he receive full compensation provided under the law because his employer does not hesitate to harness its immense resources to limit its liability. 

Labor litigation takes years before it reaches the Supreme Court.

 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. 

Due to the longer years that they have to wait, without any leverage in prosecuting his monetary claims, chances are, the seafarer bows to the demand of his employer to either drop his claim or accept a small settlement. 

The scenario under said provision  will be analogous to situations described by the  Supreme Court where "the judgment becomes illusory. (Corona v. CA, ,343 SCRA 512) 

The Supreme Court lamented that   the claimant "has grown old with the case. He fears he may no longer be in this world when the case is finally decided." (Borja vs.  CA, 196 SCRA 847)  The prevailing party might  be unable to enjoy  the judgment award  after the lapse of time, considering the tactics of the adverse party who may have no recourse but to delay. (Intramuros Tennis Club, Inc. v. PTA,341 SCRA 90)

In cases of execution pending appeal, the Supreme Court underscored that " the law itself has laid down a compassionate policy which, once more, vivifies and enhances the provisions of the 1987 Constitution on labor and the working man.  These duties and responsibilities of the State are imposed not so much to express sympathy for the workingman as to forcefully and meaningfully underscore labor as a primary social and economic force, which the Constitution also expressly affirms with equal intensity. Labor is an indispensable partner for the nation's progress and stability" ( Aris Inc. vs. NLRC, 200 SCRA 246) 

If the provision  that aims to delay in execution will be included, the proposed  Magna Carta   becomes a tool of oppression and inequity to the prejudice of  the seafarer.

In the end, such legislative act runs in contradiction to the constitutional provision  that says "the State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare." (Art. II, Sec. 18, Constitution, 1987.). 

 (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)

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).

Leptospitoris in the seafaring industry

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

  One of the infections that a seafarer may suffer while on board the vessel  is leptospirosis. It  is an infection caused by corkscrew-shaped bacteria called Leptospira.

Leptospiral infection in humans causes a range of symptoms, and some infected persons may have no symptoms at all. Leptospirosis is a biphasic disease that begins suddenly with fever accompanied by chills, intense headache, severe myalgia (muscle ache), abdominal pain, conjunctival suffusion (red eye), and occasionally a skin rash. The symptoms appear after an incubation period of 7–12 days. 

It is often transmitted by animal urine or by water or soil containing animal urine coming into contact with breaks in the skin, eyes, mouth, or nose. It is contagious as long as the urine is still moist. Rats, mice, and moles are important primary hosts but a wide range of other mammals including dogs, deer, rabbits, cows, sheep,  and certain marine mammals carry and transmit the disease as secondary hosts. 

            The classic form of severe leptospirosis is known as Weil's disease, which is characterized by liver damage (causing jaundice), kidney failure, and bleeding. Additionally, the heart and brain can be affected, meningitis of the outer layer of the brain, encephalitis of brain tissue with same signs and symptoms; and lung affected as the most serious and life-threatening of all leptospirosis complications. The infection is often incorrectly diagnosed due to the nonspecific symptoms. Other severe manifestations include extreme fatigue, hearing loss, respiratory distress, and azotemia.

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 .

Leptospiros 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.

 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. 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.

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, such as headaches, fever, coughs,  sore throat. chills, nausea, and shivering, skin rashes.  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)

For your eyes only

Protection of eyes is of paramount importance while working on ships. Shipboard jobs such as welding, chipping, painting, and working with hazardous material such as oil and  chemicals as well as exposure to the sun’s UV rays  pose great danger to the seafarer’s  eyes.   If an accident occurs, and an eye is exposed to harmful materials or substances, it will only take seconds for severe injury to ensue.

A seafarer’s entitlement for medical benefits due to an eye condition is dependent on basically two things:  (a)  he suffered this illness during the term of his employment contract and (b)   his illness  is one of the listed occupational disease or that his illness or injury is  work-related.

Aside from blindness, the POEA contract identified as work-related illness the following: (a)  Cancer of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or paraffin, or compound product or residue of these substances, (b) Vitreal hemorrhage and retinal detachment caused by the strain upon lifting of heavy loads and (c) Cataract and pterygium caused by prolonged exposure to UV light or welding, wind abrasion and sea breeze.

A seafarer  who is diagnosed of color blindness, more often than not will not be given medical attention. Companies does not consider such condition as work-related as they argue that some cases  are  genetic,  a result of other diseases such as diabetes and multiple sclerosis or acquired over time due to the aging process and medication.

The POEA contract states that a seafarer who suffered  blindness or total and permanent loss of vision of both eyes may be assessed with a disability grading of Grade 1, or  be declared total permanently disabled.

Companies usually argue  that under  the POEA contract, only those seafarers that are classified under Grade 1 disabilities are considered to have suffered total and permanent disability and therefore entitled to US$60,000.00 as disability benefits.

However, the POEA contract is not really reflective of the benefits that should be given to the seafarer based on the grading system. 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). 

A seafarer who is diagnosed to have total blindness of one eye and fifty percent (50%) loss of vision of the other eye  will be assessed as Grade 5 only. On the other hand, Grade 7 assessment will be given to  one who  lost   one eye or total blindness of one eye. Grade 12 will be issued   for other  illnesses of one of the eyes ( Lagopthalmo,  Ectropion,  Ephiphora, and Ptosis) 

In some instances, the defective eyes condition is detected only during the Pre-Employment Medical Examination (PEME). The seafarer may not receive any medical benefits since there is no contract yet to speak of. Such condition must be documented during the effectivity of the contract.

In reality, seafarers suffering with such eye conditions will never be employed due to visual impairments. Misperceptions and failures to interpret visual information correctly during duties are common contributors to maritime incidents. 

The Supreme Court's consistently ruled that in disability compensation, "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."  Permanent total disability 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. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it is enough that it incapacitates to perform his customary work.

Any seafarer who suffered the above medical conditions is in essence should be declared total permanent disabled, and not merely partial temporary.

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.

(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)

sickness allowance

A medically repatriated   seafarer would normally result in depriving him of compensation income due to his inability to perform his sea duties.

Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, the Filipino seafarer is physically, 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.

The employer  is liable for  three separate and distinct  kinds of liabilities under the  Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) for any work-related illness or injury that the seafarer may have suffered during the term of the contract. Employers must: (1) provide   medical treatment to  the seafarer at their cost; (b) pay the seafarer sickness allowance equivalent to his basic wage  and (2) compensate the seafarer for his permanent total or partial disability as finally determined by the company-designated physician.

The employer is liable for the full wage, while the seafarer is still on board, and the cost of medical treatment in foreign ports. The employer also has  to bear the cost of repatriation and treatment, and the seafarer is entitled to an additional sickness allowance.

To address the contingency of his  repatriation  to undergo treatment,   the POEA contract  imposes on the employer the obligation to provide the seafarer with sickness allowance that is equivalent to his basic wage until the seafarer is declared fit to work or the degree of his permanent disability is determined by the company-designated physician. The period for the declaration should be made within the period of 120 days or 240 days, as the case may be. The number of days under medication is a significant element in determining the disability benefits of  a seafarer who was a medically repatriated.  

The amount of sickness allowance is the basic wage of the seafarer, counting from the day he signed off from the ship until the time he is declared fit to work or disability grading assessed by the company-designated physician.

The company is liable for the sickness allowance at the time when he is under treatment and waiting for the company-designated doctor to decide if the injury or illness is work-related.

 If the seafarer is declared fit for duty after the medical treatment, the sickness allowance is the only benefit he could get. If the seafarer is further assessed disability  grading due to irreperable  physical damage, he could receive the said sickness allowance plus  the disability benefits  based  on the  grading system.

 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)