Protection of seafarers’ rights and ambulance chasing

Protection of seafarers’ rights and ambulance chasing
ATTY. DENNIS R. GORECHO - | November 26,2019 - https://cebudailynews.inquirer.net/272140/protection-of-seafarers-rights...

The dwindling numbers of deployed seafarers are usually misleadingly blamed by employers and manning agencies on the increasing number of litigated cases.

They have deliberately and sweepingly depicted seafarers’ lawyers as “unscrupulous” in an attempt to deflect the real issues why cases are being filed.

They criticized the lawyers, most of them they described as “ambulance chasers,” who go to lengths to push seafarers to file labor cases against their foreign employers.

In essence, they utilize the phrase that seafarers seek “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.

The seafarer’s risks of injury, illness or death are high since he is constantly exposed to dangerous working environment as the ships cross ocean boundaries.

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 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.

Two elements must concur for compensability . First, that the injury or illness must be work-related; and second, it must have existed during the term of the seafarer’s employment contract. The first requirement appeared in the 2000 and 2010 POEA contract but is absent in the 1996 version.

Through such restrictive provisions of the POEA contract, claims for disability and death compensation became a legal battleground which is partly attributable to the fact that employers do not hesitate to harness their immense resources to limit their 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.

However, their medical assessment “is not the alpha and the omega” (Elburg Shipmgt Phils. vs. Quiogue, Jr,764 SCRA 431) as the POEA contract does not preclude the seafarer from getting a second opinion as to his condition.

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 50 percent loss of vision of the other eye (Grade 5) will never be employed due to physical impairments.

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 expose the company to more serious insurance liabilities.

Thus, Supreme Court’s consistently ruled that “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.” (Valenzona vs. Fair Shipping Corp, 659 SCRA 642)

The word “unscrupulous” should likewise be applied to the employers who harness their immense resources to limit their liability.

In many instances, the seafarer signs 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, or 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.