The imbalanced legal battle on seafarers claims
Wed, 05/04/2016 - 11:07 admin
Atty. Dennis R. Gorecho
Through legislative fiat, ANGKLA partylist is throwing off-balance the already imbalanced legal battle on seafarers claims.
ANGKLA has consistently used the phrase “ balancing the interest of the seafarer and the company” when it filed the proposed bill (House Bill No. 5430) that aimed to delay the execution of the monetary judgment award issued by the National Labor Relations Commission (NLRC) and the National
Conciliation and Mediation Board (NCMB) in favor of a seafarer. It is the twin bill of the new law, the so-called “Seafarers’ Protection Act”.
Every labor dispute is a David and Goliath battle as it involves two opposing parties: the worker on one side and the management on the other, for monetary claims for disability and death benefits, illegal dismissal as well as unpaid or underpayment of salaries and wages.
By placing the proceeds in escrow until such time the finality of the decision issued by the appropriate appellate court (Supreme Court or Court of Appeals), in the end, the “balance of scale” will tilt more to capital as this will protect the business interest of the manning agencies and their principal ther than the seafarers themselves.
In order to discourage seafarers in pursuing legal actions against the companies when it authored the new law , the Seafarers’ Protection Act, , ANGKLA deliberately and sweepingly depicted seafarers’ lawyers as “unscrupulous” in an attempt to deflect the real issues why cases are being filed.
They blamed the lawyers , most of them they described as “ambulance chasers” , who go to lengths to pushseafarers to file labor cases against their foreign employers, claiming for benefits even beyond the claims they are actually entitled to.
In essence, ANGKLA echoed the employer’s phrase “ benefits even beyond the claims they are actually entitled ” to sanitize the problematic legal battle for seafarer’s compensation.
Valid claims, employers argue, necessarily must follow what the POEA contract dictates: a contract that contains terms and conditions formulated more favorable to his employer and is littered with ambiguous provisions, generalizations, technicalities that he does not understand.
Away from his family and working on board vessels sailing non-stop for weeks or months the world’s oceans, he is 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.
Under the 1996 POEA Standard Employment Contract (SEC), for disability or death to be compensable, it was sufficient that the seafarer suffered injury or illness during the term of his employment. The cause of illness or death is immaterial.
However, through the lobbying of the principals and their manning agencies, the restrictive clause “work-related” was added under Section 20 (B) of the 2000 POEA SEC to limit their liabilities. The 2000
POEA SEC 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”. Being included in the list is not enough, since all of the following conditions must be satisfied: (a) the seafarer’s work must involve the risks described; (b) the disease was contracted as a result of the seafarer's exposure to them described risks; (c). the disease was contracted within a period of exposure and under such other factorsm necessary to contract it; and (d) there was no notorious negligence on the part of the seafarer. These same definitions were reiterated in the 2010 POEA SEC.
Two elements must concur for an injury or illness to be compensable. First, that the injury or illness must be work-related; and second, that the work-related injury or illness must have existed during the term of the seafarer's employment contract. The first requirement appeared in the 2000 and 2010 POEA SEC but is absent in the 1996 version.
Through such restrictive provisions of the POEA SEC, claims for disability compensation became a legal battleground, especially in instances when seafarers do not receive full compensation that they are legally entitled to have. Such emergence of cases is attributable to the fact that the seafarer’s employer does not hesitate to harness its immense resources to limit its liability.
In denying, if not limiting, the seafarer’s claims, the employer usually raise the misleading argument that the POEA mandated that disability can only be assessed by the company-designated physician based on the disability grading system considering that the latter had the time and the opportunity to constantly monitor the health and physical condition of the seafarer. However, the Supreme Court stressed that their medical assessment “is not the alpha and the omega of the seafarer's claim for permanent and total disability.” (Elburg Shipmanagement Phils. vs. Quiogue, Jr, G.R.No.211882 July 29, 2015). The problem can be partly attributed to the Supreme Court's observation on the proliferation of obviously biased company doctor whose “findings cannot be taken as gospel truth” and “are palpably self-serving and certainly could not be considered independent” as their "loyalty rests completely upon the company they serve". (UPL/HAL vs . Beseril, 487 SCRA 249). Thus, the POEA contract does not preclude the seafarer from getting a second opinion as to his condition for purposes of claiming disability benefits.
In reality, the grading system assessment under the POEA Contract is not reflective of the benefits that should be given to the seafarer. 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).
Employers will never hire a seafarer who suffered complete loss of the sense of hearing on both ears (Grade 3), loss of speech due to injury to the vocal cord (Grade 9), total loss of a leg or amputation at or above the knee (Grade 3), paralysis of one upper extremity (Grade3) , or loss of one foot at ankle joint or above (Grade 6), loss of ten fingers of both hands (Grade 3) or amputation between wrist and elbow joint (Grade 5), or total blindness of one eye and fifty percent (50%) loss of vision of the other eye will never be employed due to visual impairments. (Grade 5). Fit-To Work certifications are given even to seafarers who are still not cured or in essence can no longer be employed such as those who suffered from heart attacks, aneurism or stroke.
From the business point of view, it will be risky for the employers to let the seafarer be re-employed since the harsh working environment might only aggravate his fragile condition and in the end mexpose the company to more serious insurance liabilities.
Thus, Supreme Court's consistently ruled that "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. Disability need not render the seafarer absolutely helpless or feeble to be compensable; it 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. (Valenzona vs. Fair Shipping Corporation, 659 SCRA 642)
The word “unscrupulous” should likewise be applied to the employers and their people who harness
their immense resources to limit their liability. In many instances, the seafarer signs Receipt and
Quitclaim documents thereby releasing his employers from all claims, demands and causes of action
without even understanding their contents. Oftentimes, he is misled into accepting an ex-gratia,
miniscule amount, in the guise that his condition is either not work-connected, or for any other reason
for which he does not comprehend.
Unless their definition of “valid claims” is changed, through the deletion of the “work-related” clause,
and through the reversion to the old 1996 POEA Contract , the denials of seafarers’ claims will
continue. The compensation scheme should be less restrictive and more realistic, Otherwise, their only
recourse is to seek legal assistance from lawyers of their own choosing. Conversely speaking, give the
seafarers what they should receive, and employers will not be hounded by legal cases.
In essence, such reversion to the 1996 POEA Contract was partially done in the implementation of the
Compulsory Insurance Coverage under the Migrant Workers and Overseas Filipinos Act of 1995” or
Republic Act 8042 as amended by Republic Acts 9422 and 10022. The seafarer or his beneficiaries will
automatically be given, among others, the benefits (US$15,000.00 if accidental death, US$10,000.00 if
natural death, US$7,500.00 if total permanent disability) with or without fault on the part of the
seafarer, as long as the basis of such claim occurred during the effectivity of the POEA Contract.
And expectedly, ANGKLA will not pursue the total deletion of the “work related clause” since this will
run counter to the business interest of the employers.
In fact, ANGKLA filed House Bill No. 5430 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
NLRC/NCMB. The seafarer will wait for longer years before they receive the award by the
NLRC/NCMB, ANGKLA proposes that the proceeds of execution shall be deposited in an escrow account
to ensure the restitution of monetary awards in case the appropriate appellate court annuls or partially
or totally reverses the monetary judgment.
Labor litigation takes years before it reaches the supreme court. In most cases, the elevation of the
records alone from the NLRC/NCMB to the Court of Appeals or Supreme Court will take several years.
The proceedings in the appellate court will entail further delay. ANGKLA justifies the Escrow bill to
ensure that the seafarer will still receive the award in the future in the event that the manning agency
close down. However, ANGKLA disregarded the fact that 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 forcing the seafarers into accepting an ex-gratia, miniscule amount.
Companies have the legal remedies to recover the amount, but one cannot reclaim the life of the
It is election time again. Be critical of the real colors.
About the author
Atty. Dennis R. Gorecho is a graduate of UP College of Law (1998) and is currently a junior partner of
Sapalo Velez Bundang Bulilan (SVBB) law offices who heads the seafarers’ division. He is a speaker on
nationwide paralegal seminars on seafarers rights. He is presently the executive vice president of the
Maritime Law Association of the Philippines (MARLAW), and an active member of the Maritime Forum
Inc. , the National Seafarers Day (NSD) committee and International Pro Bono Network. The SVBB law
works hand in hand with various seafarers welfare organizations such as the Apostleship of the Seas
(AOS) Philippines , Luneta Seafarers Welfare Foundation (LUSWELF) and United Filipino Seafarers (UFS) .
He is a legal commentator on maritime issues on print, radio and TV. A co-anchor of the radio program
Bantay OCW Usapang Marino aired over Radio Inquirer/ DZIQ every Wednesday 10:30am to 12noon.
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