Paulino Ungos III

Lawyer | Law Professor | Author

Tag: notice

  • Extent of Disability vs. Determination of Fitness for Sea Duty

    If there is a claim for total and permanent disability benefits by a seafarer, the following rules shall govern:

    • The company-designated physician must issue a final medical assessment on the seafarer’s disability grading within a period of 120 days from the time the seafarer reported to him;
    • If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer’s disability becomes permanent and total;
    • If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
    • If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer’s disability becomes permanent and total, regardless of any justification.

    The extent of the disability (whether total or partial) of the seafarer is determined, not by the number of days that he could not work, but by the disability grading the doctor recognizes based on his resulting incapacity to work and earn his wages.

    However, the determination of the fitness of a seafarer for sea duty is the province of the company-designated physician, subject to the periods prescribed by law.

    Further reading:

    • Intermodal Shipping, Inc. v. Escalona, G.R. No. 243380 April 1, 2019.

  • Seafarer’s Noncompliance with the Third Doctor Referral Procedure

    The seafarer entered into a 9-month employment contract with Veritas Maritime Corp. to work as a bosun on board the M/V Bangkok Highway, a vessel owned by TNCK Kline. He boarded the vessel on 15 October 2011.

    The seafarer claimed that while he was on official duty on 10 February 2012, thinner solution spilled over his face, neck, chest, and arm, which suffered third-degree burns. When the vessel reached the port in Korea, the seafarer was brought to Dr. Kim Sung Jin, who diagnosed him to have suffered about a 15% to 20% third-degree burn. Said doctor declared him unfit for work, and recommended that he be immediately hospitalized for special burn treatment.

    The seafarer arrived in the Philippines on 23 February 2012 and was placed under the care of the company-designated physician, who diagnosed him with contact dermatitis.

    On 25 May 2012, the company-designated physician declared him fit to go back to work.

    The seafarer thereafter consulted his personal doctor who declared that he is not yet well.

    On 27 July 2012, the seafarer filed a complaint against Veritas Maritime Corp., et al., for payment of permanent total disability benefits, moral and exemplary damages, and attorney’s fees.

    Question:

    Will the seafarer’s complaint prosper?

    Answer:

    No. The complaint should be dismissed.

    Section 20 (A) (2)1Relevant portion states: “2. x x x However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of his disability has been established by the company-designated physician.” and (3)2Relevant portion states: “3. x x x If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.” of the Philippine Overseas Employment Administration Standard Employment Contract3Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships, POEA Memorandum Circular No. 010, Series of 2010. requires the company-designated physician to determine the seafarer’s fitness to work or degree of disability upon the seafarer’s medical repatriation. Nonetheless, the seafarer may dispute the company-designated physician’s report by seasonably consulting another doctor. If this doctor appointed by the seafarer disagrees with the assessment of the company-designated physician, a third doctor may be agreed jointly between the employer and the seafarer. The third doctor’s decision shall be final and binding on both parties. Jurisprudence4Escabusa v. Veritas Maritime Corp., G.R. No. 223732, January 16, 2019; Magsaysay Maritime Corp. et al. v. Verga, G.R. No. 221250, October 10, 2018; Calimlim v. Wallem Maritime Services, Inc., G.R. No. 220629, November 23, 2016; INC Navigation Co. Philippines, Inc., et al. v. Rosales, 744 Phil. 774 (2014); Phil. Hammonia Ship Agency, Inc., et al. v. Dumadag, 712 Phil. 507 (2013); Ayungo v. Beamko Shipmanagement Corp., et al., 728 Phil. 244 (2014); Santiago v. Pacbasin ShipManagement, Inc., et al., 686 Phil. 255 (2012); Andrada v. Agemar Manning Agency, Inc., et al., 698 Phil. 170 (2012); Masangcay v. Trans-Global Maritime Agency, Inc., et al., 590 Phil. 611 (2008); and Vergara v. Hammonia Maritime Services, Inc., et al., 588 Phil. 895 (2008). dictates that this referral to a third doctor is a mandatory procedure that must be strictly followed.

    In the present case, it was shown that on 25 May 2012, about 3 months from his repatriation, the company-designated physician declared the seafarer fit for work.

    Although the seafarer consulted his personal doctor (who apparently had an opinion contrary to that reached by the company-designated physician), there was no showing that at the time the complaint was filed, said seafarer had observed the third doctor referral procedure under the Philippine Overseas Employment Administration Standard Employment Contract.

    The seafarer’s noncompliance with the third doctor referral procedure constituted a breach of the Philippine Overseas Employment Administration Standard Employment Contract and thus rendered his complaint dismissible for being premature. Jurisprudence5Escabusa v. Veritas Maritime Corp., G.R. No. 223732, January 16, 2019;Calimlim v. Wallem Maritime Services, Inc., et al., 800 Phil. 830 (2016); Veritas Maritime Corp., et al. v. Gepanaga, Jr., 753 Phil. 308 (2015); Philman Marine Agency, Inc., et al. v. Cabanban, 715 Phil. 454 (2013); and Vergara v. Hammonia Maritime Services, Inc., et al., 588 Phil. 895 (2008). teaches that in such a situation, the company-designated physician’s findings should prevail.

    Further reading:

    • Escabusa v. Veritas Maritime Corp., G.R. No. 223732, January 16, 2019.

  • Judicial Review of Orders or Decisions of the Department of Agrarian Reform Adjudication Board

    The Rules of Court clearly provides that awards, judgments, final orders or resolutions of quasi-judicial agencies are appealable to the Court of Appeals via Rule 43. Orders or decisions of the Department of Agrarian Reform Adjudication Board may be brought on appeal to the Court of Appeals within 15 days from receipt of the same.12009 Department of Agrarian Reform Adjudication Board Rules of Procedure

    Further reading:

    • Rivera v. Heirs of Cabling, G.R. No. 242036, January 14, 2019.

  • Establish Compliance with the Post-employment Medical Examination

    In Mesta v. United Philippine Lines, Inc.,1G.R. No. 242719, January 14, 2019. the Supreme Court emphasized that the seafarer must comply with the post-employment medical examination set forth under Section 20 (A) (3) of the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships.2Philippine Overseas Employment Administration Memorandum Circular No. 10, Series of 10. Section 20 (A) (3) provides:
    “SECTION 20. Compensation and Benefits. —
    “A. Compensation and Benefits for Injury or Illness
    “The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows:
    x x x
    3. x x x For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. In the course of the treatment, the seafarer shall also report regularly to the company-designated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.     The Court said:

    x x x [P]etitioner failed to establish compliance with the mandatory post-employment medical examination. Jurisprudence provides that one who alleges a critical fact has the burden to prove his allegation with substantial evidence, which petitioner failed to do. Aside from her bare allegation, records are bereft of any evidence to show that petitioner indeed went to respondent United Philippine Lines, Inc.’s office to request for medical attention which was allegedly rebuffed.

    Nevertheless, even assuming that petitioner did comply with the requisite post-employment medical examination, the CA was also correct in finding that the causal connection between her illness and the work she performed onboard the ship was not established. Petitioner merely presented documentary evidence to show her condition before and after the termination of her contract but failed to establish how the nature of her work increased the risk of contracting her illness. Thus, petitioner is not entitled to claim disability benefits under the POEA-SEC.

    Further Reading:

    • Mesta v. United Philippine Lines, Inc., G.R. No. 242719, January 14, 2019.

  • No Basis to Award Salary Equivalent to 3 Months

    In Alster International Shipping Services, Inc v. Acosta,1G.R. No. 242085, January 14, 2019. the Supreme Court reiterated the principle that an illegally dismissed migrant worker is entitled to payment of salaries for the unexpired portion of the employment contract. The Court said:

    With respect to the proper amount of indemnity due him, the provision of law, restricting wages recoverable by illegally dismissed overseas workers to three months only, having been struck down twice for its unconstitutionality, there is no more coherent legal basis for restricting the unpaid salaries award in favor of respondent to an amount equivalent to three months’ worth of work only. Hence, respondent is entitled to the payment of unpaid salaries equivalent to the remaining unexpired portion of his employment contract.

    Further reading:

    • Alster International Shipping Services, Inc v. Acosta, G.R. No. 242085, January 14, 2019.

  • Allegations with Substantial Evidence

    In Republic v. Pilpa1G.R. No. 242549, January 14, 2019., the Supreme Court reiterated the principle that the one who makes an allegation has the burden of proving it. A party alleging a critical fact must support his allegation with substantial evidence. Any decision based on unsubstantiated allegation cannot stand as it will offend due process. The Court said:

    x x x The CA was also correct when it ruled that VGC failed to rebut respondents’ claim that the six (6)-day workweek has been in existence since VGC took over the management of the golf course in 2007 and, as such, has become a company practice. Jurisprudence provides that one who alleges a critical fact has the burden to prove his allegation with substantial evidence. Aside from its bare allegations, VGC failed to establish by substantial evidence that it was suffering from serious losses which necessitated the reduction in the number of working days per week.

    Further reading:

    • Republic v. Pilpa, G.R. No. 242549, January 14, 2019.

  • Company-designated Physician’s Failure to Make a Definite Assessment

    Singa Ship Management Philippines, Inc. v. Ignes,1G.R. No. 243285, January 14, 2019. re-emphasized the rule that within the 120-day period from the seafarer’s repatriation, the company-designated physician must either make a definite assessment of the seafarer’s fitness to resume work or the degree of his permanent disability, or provide sufficient justification to extend the medical treatment from 120 days to 240 days. Failure of the company-designated physician to do so shall lead to a conclusive presumption that the seafarer’s disability is permanent and total. Said the Court:

    [F]rom the time of Ignes’ repatriation on November 26, 2015 until the expiration of the one hundred twenty (120)-day period on March 25, 2016, there was neither a final medical assessment nor recommendation for further treatment issued by the company-designated physician (CDP). Notably, the CDP’s March 30, 2016 Disability Grading and Medical Report, which was in fact issued after the 120-day assessment period under Section 20 (A) (3) of the 2010 Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC), did not state a definitive assessment of Ignes’ fitness or unfitness to resume his duties as a seafarer. While it declared that Ignes may return to work, it also stated that his capacity to return hinges on the result of his re-evaluation, which must be conducted six (6) months after his operation on January 25, 2016 or on or after July 25, 2016. It must be emphasized that the CDP must, within the 120-day period, either make a definite assessment of the seafarer’s fitness to resume work or the degree of his permanent disability,2See Elburg Shipmanagement Phils., Inc. v. Quiogue, 765 Phil. 341, 360 (2015). See also APQ Shipmanagement Co., Ltd. v. Caseñas, 735 Phil. 300, 320 (2014). See further Carcedo v. Maine Marine Philippines, Inc., 758 Phil. 166, 183 (2015). or provide sufficient justification to extend the medical treatment from 120 days to 240 days;3See Orient Hope Agencies, Inc. v. Jara, G.R. No. 204307, June 6, 2018. otherwise, the seafarer’s disability shall be conclusively presumed to be permanent and total,4See Jebsens Maritime, Inc. v. Rapiz, 803 Phil. 266, 273 (2017). as in this case. Accordingly, the CA did not err in upholding the award of permanent total disability benefits to Ignes.

    Further reading:

    • Singa Ship Management Philippines, Inc. v. Ignes, G.R. No. 243285, January 14, 2019.

  • Prescriptive Period of Claims for Service Incentive Leave Pay

    In Dula v. Datem, Inc.,1G.R. No. 234466, January 10, 2019. the Supreme Court reiterated the principle that the 3-year prescriptive period for a claim of service incentive leave pay commences from the employee’s resignation or separation from employment. The Court ruled:

    The Court, however, modifies the decision of the CA insofar as the award of service incentive leave pay to petitioner is concerned. Auto Bus Transport System, Inc. v. Bautista [G.R. No. 156367, May 16, 2005, 458 SCRA 578, 596.] clarified that the three (3)-year prescriptive period under Article [306] of the Labor Code commences from the time when the employer refuses to pay its monetary equivalent after demand of commutation or upon termination of the employee’s services, as the case may be. Thus, the prescriptive period with respect to petitioner’s claim for his entire service incentive leave pay commenced only from the time of his resignation or separation from employment in October 2010. Since petitioner filed his complaint in April 2013, his claim for service incentive leave pay has not yet prescribed and he may be awarded service incentive leave pay for his entire years of service with the company.

    Further Reading:

    • Dula v. Datem, Inc., G.R. No. 234466, January 10, 2019.

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  • Rebutting the Presumption of Regularity in the Performance of Official Duty

    In John Hay Management Corp. v. Pascua,1G.R. No. 241497, January 10, 2019. the respondent therein successfully rebutted the presumption of regularity relating to service of decisions. She was able to prove that the person who received the Decision of the Office of the Labor Arbiter was not her counsel’s authorized agent. The 10-day period for filing her appeal thus commenced only on actual delivery of the Decision to her counsel. The Court ruled:

    Indeed, the presumption is that the decision was delivered to an authorized agent in the office of respondent’s counsel, Atty. Edward Chumawar, in the absence of proof to the contrary. It is likewise a fundamental rule that unless the contrary is proven, official duty is presumed to have been performed regularly and judicial proceedings regularly conducted, which includes the presumption of regularity of service of summons and other notices. The registry return of the registered mail as having been received is prima facie proof of the facts indicated therein. Thus, it was necessary for respondent to rebut that legal presumption with competent and proper evidence. This, she was able to do through a certification from the Provincial Human Resources Management Office of the Bontoc, Mountain Province that Gina Faycho was its employee from January 2, 2014 to December 31, 2014. Clearly, therefore, Gina Faycho was neither a clerk of Atty. Chumawar, nor a person in charge of his office. Hence, her receipt of the Decision on October 10, 2014 cannot be considered as notice to Atty. Chumawar. Since a copy of the Decision was actually delivered to Atty. Chuamawar only on October 13, 2014, it was only on this date that the ten-day period for the filing of respondent’s appeal commenced to run.2Emphasis supplied.

    Further Reading:

    • John Hay Management Corp. v. Pascua, G.R. No. 241497, January 10, 2019.

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  • Inconsistent Positions Towards Brazen Deception

    In Styleworks Garment Export v. Bentor,1G.R. No. 241888, January 10, 2019. the Supreme Court pointed out the inconsistent positions pursued by the petitioners that it no longer gave due course to their arguments. The Court ruled:

    Essentially, petitioners argue that they should not have been ordered to pay respondents separation pay and instead allowed to find equivalent positions for them. Petitioners must, however, be reminded that they clearly stated in their Opposition to respondents’ Motion for Execution filed with the Labor Arbiter (LA) that taking petitioners back as workers would be prejudicial to the company because they have already filled up their former positions. They did not mention therein that it was possible for them to find or create positions equivalent to respondents’ former positions as to accommodate them, thus, leaving the impression that they could no longer take respondents back. However, when they were ordered to instead pay respondents their separation pay in lieu of reinstatement, petitioners made a turn around by asserting that they should have first been ordered by the LA to find equivalent positions for respondents. Clearly, petitioners were taking inconsistent positions to suit their purpose. It bears to state that “[a] party will not be allowed to make a mockery of justice by taking inconsistent positions which, if allowed, would result in brazen deception.”

    Further Reading:

    • Styleworks Garment Export v. Bentor, G.R. No. 241888, January 10, 2019.