MARLOW NAVIGATION PHILS., INC., MARCREW SCHIFFAHRTS GMBH AND/OR EILEEN R. MORALES, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION AND CRISTITUTO G. GONJORAN, JR., RESPONDE…
BARRIOS, M. M., J.:
of Civil Procedure assails, on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction, the Decision dated 15 June
2012[1] of the National Labor Relations Commission. The dispositive portion reads:
x x x
WHEREFORE, premises considered, the instant appeal is DISMISSED for lack of merit. The Decision appealed from is AFFIRMED.
SO ORDERED.
x x x
Also assailed is the Resolution[2] dated 27 July 2012 denying petitioner’s Motion for Reconsideration.
The Antecedents
On 19 April 2010, petitioner Marlow Navigation Phils., Inc. hired private respondent as Second (2nd)
Engineer on board the vessel “M/V Elena” for a period of eight (8)
months. Having been issued a clean bill of health, private respondent
embarked on the vessel on 21 April 2010.
Sometime in November 2010, while private respondent was
lifting a large chain block that he used to transport a shaft
generator, he suddenly felt excruciating pain on his back and right leg.
He reported this to the ship captain and days later, he was examined
at Haiphong, Vietnam where private respondent was diagnosed to have a
“slacken ligament” and advised against heavy work.[3]
As a consequence, private respondent was repatriated to the
Philippines on 11 November 2010 for further medical treatment. He was
initially referred by petitioners to Davao Doctor’s Hospital where the
MRI conducted on him revealed: a) compression fracture of L5; b) central
disc protrusion with disc generation L4-L5; and c) left paracentral
disc protrusion.[4] On 18
November 2010, private respondent was admitted at Manila Doctor’s
Hospital where he was examined and advised by company physician, Dr. Joy
Ellen Buela Barrameda, to undergo physical therapy and rehabilitation.
Therein, he was diagnosed with Lumbar Disc Disease. Private respondent
underwent physical therapy treatment from 24 November 2010 to 26 April
2011, but he continued to suffer pain and numbness on the left lower
extremity.
On 14 April 2011, Dr. Barrameda assessed private respondent’s
disability at Grade 8, moderate rigidity or 2/3 loss of motion or
lifting power of the trunk.[5]
On 26 April 2011, the company-designated physiotherapist, Jasmin
Pagaduan, issued a discharge note indicating therein that private
respondent had not fully recovered from his injury.[6]
Despite medical treatment, his condition showed minimal
improvement. On 29 June 2011, still wearing a back brace, he sought
medical help from an independent orthopedic surgeon, Dr. Rogelio
Catapang, Jr., who gave the findings that “there is tenderness along the
spinous process and para spinal muscles of the lumbar spine. Trunk
motion is limited by pain in all directions with limited range of
motion, with radiating pain to right leg. Muscle strength is 5/5 on
both lower extremities. Numbness is felt on the buttocks to the lower
extremity especially on the lateral side right. Deep tendon reflexes
are normoactive. Straight leg raising test is noted on the right.” It
was observed that private respondent has difficulty in bending to pick
up things and in climbing or descending stairs, and thus, has lost his
pre injury capacity as a seaman. Hence, Dr. Catapang assessed private
respondent as “permanently unfit in any capacity for further sea duties
as a seaman”.[7]
Thereafter, as private respondent believed that he is entitled
to full disability benefits, he sought financial assistance with
petitioners, but this was refused. Petitioners wanted to compensate him
only for Grade 8 disability benefits per assessment by the
company-designated physician. Despite a series of conferences, the
parties failed to reach settlement as to the degree of disability, and
hence, private respondent eventually filed a complaint seeking permanent
disability benefits against petitioners.
On 31 January 2012, the Labor Arbiter rendered a decision
awarding private respondent permanent total disability benefits.
Unsatisfied with the ruling, petitioners appealed to public respondent
NLRC. Petitioners insist that private respondent was suffering from a
partial disability and entitled only to a Grade 8 disability
compensation.[8]
As heretofore stated, public respondent dismissed the appeal
and affirmed the award. Petitioners moved for reconsideration, but the
same was denied. Hence, this instant petition for certiorari by
petitioner arguing that:
I
THE 120 DAY RULE IS NOT APPLICABLE TO DISABILITY CLAIMS
UNDER THE POEA CONTRACT. THE CASE OF CARMELITO VALENZONA VS. FAIR
SHIPPING CORPORATION IS NOT AT ALL SQUARES WITH THE PRESENT CLAIM FOR
DISABILITY BENEFITS. HENCE, WHEN PUBLIC RESPONDENT RELIED ON THE SAID
DOCTRINE AND JURISPRUDENCE IN THE RESOLUTION OF THE CASE, GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION HAS BEEN
COMMITTED.
II
THE FINDINGS OF PRIVATE RESPONDENT’S PERSONAL DOCTOR, IN
THE PERSON OF DR. ROGELIO CATAPANG, CANNOT BE GIVEN CREDENCE AS ITS
ISSUANCE LACKS ACCURACY, PRECISION AND WAS ISSUED AFTER A ONE DAY
EXAMINATION. HENCE, PUBLIC RESPONDENT COMMITTED GRAVE ERROR WHEN THE
SAME WAS UPHELD.A. DR. CATAPANG’S FINDING (sic) OF UNFITNESS TO WORK WAS (sic) ISSUED ON THE FIRST DAY OF CONSULTATION.
B. DR. CATAPANG’S FINDINGS OF UNFITNESS TO WORK WAS (sic) BASED ON A MERE PHYSICAL EXAMINATION.
C. DR. CATAPANG’S FINDING (sic) OF UNFITNESS TO WORK WAS
(sic) BASED ON AN MRI OF THE LUMBAR SPINE BEFORE THE SEAFARER UNDERWENT
TREATMENT WITH THE COMPANY DOCTORS.D. THE FINDINGS OF THE COMPANY DOCTORS WHICH WAS (sic)
THE RESULT OF MONTHS OF TREATMENT AND REHABILITATION SHOULD NOT OUTWEIGH
THE FINDINGS OF DR. CATAPANG WHOSE ASSESSMENT WAS BASED ON A ONE DAY
PHYSICAL EXAMINATION.
III
DISABILITY BENEFITS UNDER THE POEA CONTRACT ARE BASED ON
DISABILITY GRADING. A FINDING OF DISABILITY DOES NOT AUTOMATICALLY
EQUATE TO FULL DISABILITY BENEFITS. A FINDING OF THE CORRESPONDING
GRADING SHOULD FIRST BE MADE IN ORDER TO DETERMINE THE PROPER AMOUNT OF
DISABILITY BENEFITS. HENCE, WHEN PUBLIC RESPONDENT AWARDED FULL
DISABILITY WITHOUT MAKING REFERENCE TO THE SCHEDULE OF DISABILITY
BENEFITS UNDER THE POEA CONTRACT, IT IS MANIFEST THAT THERE IS A (sic)
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.
IV
PRIVATE RESPONDENT HAS THE DUTY TO PROVE WORK RELATION EVEN IF THERE EXISTS A PRESUMPTION OF WORK RELATION IN HIS FAVOR.
V
PRIVATE RESPONDENT IS BURDENED WITH THE DUTY TO PROVE
THAT HIS MEDICAL CONDITION IS WORK RELATED. HE MUST SUBMIT MEDICAL
EVIDENCE TO PROVE THE SAME AND MUST NOT MERELY RELY ON CONJECTURES AND
BLAND (sic) ALLEGATIONS. IN THE CASE AT BAR, PRIVATE RESPONDENT CLEARLY
FAILED TO PRESENT ANY EVIDENCE TO PROVE WORK RELATION.
VI
THE AWARD OF ATTORNEYS FEES IS IMPROPER
SINCE THERE WAS NO BAD FAITH ON THE PART OF PETITIONERS THAT WOULD
WARRANT AN AWARD FOR THE SAME.
Our Ruling
The petition lacks merit.
For a disability to be compensable under Section 20 (B) of the
2000 POEA-SEC, two (2) elements must concur: (1) the injury or illness
must be work-related; and (2) the work-related injury or illness must
have existed during the term of the seafarer’s employment contract.[9]
Concerning the first element, both the Labor Arbiter and
public respondent NLRC are in agreement in concluding that the injury
suffered by private respondent was work-related and that the same
constitutes permanent total disability.
We agree. It is
crystal clear that private respondent suffered the spine injury while
performing his duties as Second (2nd) Engineer on board the ship. In
Our view, therefore, the causal connection of his illness or injury and
the work for which he was contracted was sufficiently established. His
injury is work-related.
We now discuss the more pressing issue on the degree of
disability. Section 32 of the POEA-SEC enumerates the injuries or
disabilities that are classified as Grade 1 and hence, considered as
total and permanent. However, injuries or disabilities with a
disability grading from 2 to 14 (hence, deemed partial and permanent)
would incapacitate a seafarer from performing his usual sea duties for a
period of more than one hundred twenty (120) or two hundred forty (240)
days, depending on the need for further medical treatment, then the
seafarer, is, under legal contemplation, deemed totally and permanently
disabled.[10]
In a catena of cases, the Supreme Court has consistently ruled
that it is not only the POEA-SEC, or specifically its schedule of
benefits, that must be considered in determining the disability benefits
due a seafarer. Standard terms of the POEA-SEC agreed upon are intended
to be read and understood in accordance with Philippine laws,
particularly, Articles 191 to 193 of the Labor Code, as amended, and the
applicable implementing rules and regulations in case of any dispute,
claim or grievance.[11]
More specifically, in Vergara vs. Hammonia Maritime Services, Inc.,[12]
the Supreme Court read the POEA-SEC in harmony with the Labor Code and
the Amended Rules on Employee Compensation (AREC) and hence, interpreted
that: a) the 120 days provided under Section 20-B(3) of the POEA-SEC is
the period given to the employer to determine fitness to work and when
the seafarer is deemed to be in a state of total and temporary
disability; b) the 120 days of total and temporary disability may be
extended up to a maximum of 240 days should the seafarer require further
medical treatment; and c) a total and temporary disability becomes
permanent when so declared by the company-designated physician within
120 or 240 days, as the case may be, or upon the expiration of the
aforesaid periods without a declaration of either fitness to work or
permanent disability and the seafarer is still unable to resume his
regular seafaring duties.
In this case, it is undisputed that: a) private respondent was
medically repatriated on 11 November 2010; b) he was diagnosed with
lumbar disc disease; c) underwent medical treatment from 26 November
2010 to 26 April 2011 at the Manila Doctors Hospital; d) on 14 April
2011, the company-designated physician assessed private respondent’s
disability at Grade 8 disability rating; e) on 26 April 2011, a
discharge note was issued by the company-designated physiotherapist
which indicated that private respondent has not fully recovered from his
injury, i.e., after a period of 166 days from the time private
respondent was medically repatriated; f) on 29 June 2011, still feeling
pain and discomfort, private respondent consulted an independent
physician who assessed him to be unfit, in any capacity, for sea duties,
i.e., after the lapse of 230 days from repatriation. It must be noted
that petitioners’ designated physicians issued a discharge notice with
the observation that private respondent has not fully recovered from his
spine injury; and more importantly, without a categorical declaration
that petitioner is either fit or unfit to work on whether private
respondent was required to undergo further medical treatment after his
last examination on 26 April 2011. Accordingly, it is the logical
conclusion that as of that date, private respondent has not fully
recovered and that he must continue to be treated for his injury as, in
fact, he was still wearing a back brace when he consulted an expert on
orthopedic.
In the light of all these, one thing is clear:
despite medical evaluation, treatment and rehabilitation by the
company-designated physician/physiotherapist, and even his consultation
with an independent physician some 230 days after medical repatriation,
it is a glaring fact that private respondent’s condition has not fully
recovered. To wait for another ten (10) days to be able to reach 240
days will only delay the obvious and inevitable fact that private
respondent has not fully recovered as to resume his former work. In
point of fact, petitioners have already tried to settle private
respondent’s disability benefit based only on the downgraded rating of
Grade 8 given by their company-designated physician even before the
lapse of the 240 day period. Neither will it alter private respondent’s
medical condition which, as reflected in the physiotherapist’s
discharge rate, has not fully recovered as of the discharge notice given
some 166 days from repatriation.
It is also relevant to take note that Dr. Barrameda has
certified the substantial loss of private respondent’s motion and
lifting power of the trunk. This resulted from the MRI finding of
compression fracture of L5, central disc protrusion with disc
degeneration of L4-L5, and left paracentral disc protrusion. It is,
consequently, logical to conclude that private respondent’s disability
would no longer allow him to perform his usual duties as a 2nd Engineer;
hence, should be categorized as permanent and total. Disability should
not be understood more on its medical significance but on the loss of
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.[13]
Anent the award of attorney’s fees, circumstances show that
private respondent was compelled to file the complaint against
petitioners when the latter refused to heed his just demand for payment
of disability benefits. Under Article 2208 of the Civil Code, attorney’s
fees can be recovered “when the defendant’s act or omission has
compelled the plaintiff to litigate with third persons or to incur
expenses to protect his interest. Hence, the award of attorney’s fees is
proper.
WHEREFORE, foregoing considered, the instant petition is DENIED.
SO ORDERED.
Reyes, Jr., (Chairperson) and Pizarro, JJ., concur.
[1] Rollo, pp. 62-70.
[2] Id., pp. 72-75.
[3] Id., p. 161.
[4] Rollo, p. 162.
[5] Id., p. 78.
[6] Id., p. 170.
[7] Id., p. 171.
[8] Id., pp. 257-319.
[9] Gilbert Quizora vs. Denholm Crew Management (Philippines), Inc., G. R. No. 185412, 16
November 2011.
[10] Kestrel Shipping Co., Inc., et. al. vs. Francisco Munar, G.R. No. 198501, 30 January 2013.
[11] Santiago vs. Pacbasin Shipmanagement, Inc. and/or Majestic Carriers, Inc., G.R. No. 194677, 18
April 2012.
[12] G.R. No. 172933, 06 October 2008.
[13] Magsaysay Maritime Corporation, et al. vs. Oberto S. Lobusta, G.R. No. 177578, 25 January
2011.