The escrow provision and the legal battle for seafarer’s compensation
Pinoy Marino Rights
The current debate on the escrow provision of the pending Magna Carta for Filipino Seafarers basically revolves around ambulance chasing linked with the proliferation of labor cases that pose a threat to international employment.
Employers argue that seafarers seek “benefits even beyond the claims they are actually entitled” to sanitize the problematic legal battle for compensation.
Through restrictive provisions of the POEA (now DMW) seafarers employment contract, claims for disability and death compensation became a legal battleground, especially when seafarers do not receive full compensation 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. The 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).
Employers will never hire a seafarer who suffered complete loss of the sense of hearing on both ears (Grade 3), or loss of two external ears (Grade 8), or loss of speech due to injury to the vocal cord (Grade 3), or complete loss of the sense of hearing in one ear (Grade 11) as this will create problems in communication among the crew on board the vessel.
A seafarer will no longer be employed due to mobility problems if he suffered total loss of a leg or amputation at or above the knee (Grade 3), or with total paralysis of one upper extremity (Grade 3), or loss of one foot at ankle joint or above (Grade 6), or total loss of a leg or amputation at or above the knee (Grade 3), or paralysis of one lower extremity (Grade 3), or total paralysis of one upper extremity (Grade 3), or amputation of one upper extremity at or above the elbow (Grade 4), or injury to the spinal cord as to make walking impossible without the aid of a pair of crutches (Grade 4).
A seafarer can no longer hold or lift objects, or even do simple jobs for the simple reason that he no longer has grasping powers if he suffered loss of five fingers of one hand (Grade 6), or loss of 10 fingers of both hands (Grade 3), or amputation between wrist and elbow joint (Grade 5), or amputation of a hand at carpometacarpal joints (Grade 5).
A seafarer with visual impairments will never be employed if he is diagnosed to have total blindness of one eye and 50 percent loss of vision of the other eye (Grade 5), or loss of one eye or total blindness of one eye (Grade 7).
Other medical conditions include severe disfigurement of the face or head as to make the worker so repulsive as to greatly handicap him in securing or retaining (Grade 2), or such injury to the throat as necessitates the wearing of a tracheal tube (Grade 6).
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.
Employers 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.
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 that 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.” (Valenzona v. Fair Shipping Corp, 659 SCRA 642)
It does not mean state of absolute helplessness but inability to do substantially all material acts necessary to the prosecution of a gainful occupation without serious discomfort or pain and without material injury or danger to life. ( Seagull Maritime v. Dee 520 SCRA 109)
In the case of Balatero v. Senator Crewing Inc. (GR 198501 January 30, 2013), the Supreme Court explained that indeed, under POEA contract, only those injuries or disabilities that are classified as Grade 1 may be considered as total and permanent. However, if those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally and permanently disabled.
In the case of Balatero v. Senator Crewing Inc. (GR 198501 January 30, 2013), the Supreme Court explained that indeed, under POEA contract, only those injuries or disabilities that are classified as Grade 1 may be considered as total and permanent. However, if those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally and permanently disabled.