YIALOS MANNING SERVICES, INC., AND/OR OVERSEAS SHIPMANAGEMENT SA AND/OR DINO ALBERTO V. ALFONSO, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION (5TH DIVISION) AND TEOFILO …
LANTION, J.A.C., J.:
“WHEREFORE, premises considered, respondents’ Appeal is DENIED for lack of merit. The Decision of the Labor Arbiter Veneranda C. Guerrero dated August 30, 2013 stands AFFIRMED.
SO ORDERED.“[5]
THE FACTS
(As culled from the Records)
Private respondent Teofilo Berano, Jr., (hereafter private respondent) was contracted as a Fitter by petitioner Yialos Manning Services, Inc., (hereafter petitioner) for and in behalf of its foreign principal, Overseas Shipmanagement SA, to work on board the vessel “M/V Thetis” for a period of nine (9) months with a basic salary of US$698.00 per month.[6]
On 12 October 2012, private respondent left the Philippines and joined the vessel “M/V Thetis.“
Private respondent’s work as a fitter required him to work for eight (8) to sixteen (16) hours a day to ensure that the vessel would be seaworthy.
On 6 November 2012, private respondent was instructed by the Chief Engineer to repair the hydraulic hose in “Storage Number Six (6)”. He had to use acetylene to remove the rusted bolts that held the ship’s hydraulic hose. After several hours of doing the said task, private respondent lost consciousness causing him to collapse. The ship captain reported the incident to the company doctor based in Singapore and that private respondent was advised to drink plenty of water and take “Buscopan” and “Norfloxazine.” From 7 November 2012 to 8 November 2012, the ship captain monitored private respondent’s condition in coordination with the company doctor.
On 9 November 2012, private respondent was referred to a medical facility in Indonesia wherein he was examined by a doctor and was found suffering from “OBS Febrrs + Kolik Renal”. The attending doctor declared private respondent unfit to work and recommended his immediate repatriation.
On 12 November 2012, private respondent was repatriated to Manila. Upon his arrival, he was referred to the Metropolitan Medical Center for treatment. In said hospital, private respondent was examined by the company-designated physician and was diagnosed with “Bilateral L5 Radiculopathy.” Private respondent was recommended by the doctor to undergo rehabilitation therapy and medication.
Private respondent underwent three (3) months of therapy and medication but claims that he was unable to recover. However, the company-designated physician issued a certification declaring him “fit to resume sea duties as of 18 February 2013”.[7]
Unconvinced that he was fit to work, private respondent consulted Dr. Misael Jonathan Ticman who required him to undergo a series of laboratory examinations including an “MRI of the Lumbar Spine.” Based on the lab results, private respondent was found to be suffering from “Degenerative Disc Disease, L5-S1 with Disc Protusion, Annul Tear and bilateral Facet Arthrosis causing Neuroforaminal Stenosis, Disc Bulge with Left Facet Arthosis causing Neurofominal Stenosis L4L5”. Dr. Ticman certified that the nature and extent of private respondent’s condition make him unfit to work as a seaman.
In view of Dr. Ticman’s findings, private respondent claimed disability benefits with petitioner Yialos Manning Services, Inc., but was refused. Thus, private respondent filed a Complaint for disability benefits and damages before the NLRC.
On 30 August 2013, Labor Arbiter Veneranda Guerrero rendered a Decision to wit:
“WHEREFORE, premises considered, judgment is hereby rendered ordering respondents Yialos Manning Services, Inc., and/or foreign principal Overseas Shipmanagement SA to pay, jointly and severally, complainant Teofilo U. Berano, Jr., the amount of US DOLLARS SIXTY TWO THOUSANDS SEVEN HUNDRED NINETY TWO (US$62,792.00) or its Philippine peso equivalent at the time of actual payment, representing total permanent disability benefits and sickness wages, plus ten percent (10%) thereof, as and for attorney’s fees.
All other claims are dismissed for lack of merit.
SO ORDERED.”[8]
Petitioners appealed the above Decision of the Labor Arbiter before the NLRC. On 29 November 2013, the NLRC rendered the assailed Decision.
Petitioners filed a Motion for Reconsideration[9], but the same was denied.[10]
Aggrieved, Petitioners are now before Us through the present recourse raising the following issues:
A. WHETHER OR NOT PRIVATE RESPONDENT IS ENTITLED TO TOTAL AND PERMANENT DISABILITY BENEFITS.
B. WHETHER OR NOT PRIVATE RESPONDENT IS ENTITLED TO ATTORNEY’S FEES.
THIS COURT’S RULING
Petitioners contend that the NLRC committed grave abuse of discretion when it ruled that private respondent was entitled to permanent and total disability benefits.
The petition is meritorious.
The entitlement of a seafarer on overseas employment to disability benefits is governed by the medical findings, by law and by the parties’ contract. By law, the governing provisions are Articles 191 to 193, Chapter VI (Disability Benefits) of the Labor Code, in relation to Section 2, Rule X of the Rules and Regulations Implementing Book IV of the Labor Code.[11] Since private respondent was deployed to work on the vessel M/V Thetis on 12 October 2012, by contract, the provisions of the 2010 POEA Standard Employment Contract which was adopted and implemented under POEA Governing Board Resolution No. 9 and POEA Memorandum Circular No. 10 (series of 2010) must govern.
The present controversy in this case centers on private respondent’s claim for total permanent disability, thus, We find it necessary to define total and permanent disability as provided under Article 192(3)(1) of the Labor Code:
(3) The following disabilities shall be deemed total and permanent:
(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided for in the Rules.
In relation to this Labor Code provision, We also refer to Section 2, Rule X of the Rules and Regulations Implementing Book IV of the Labor Code:
Sec. 2. Period of entitlement – (a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System.
The POEA-SEC Contract, of which the parties are both signatories, is the law between them and as such, its provisions bind both of them.[12] Pertinent to the issue of compensability in the event of the seafarer’s illness or disability is Section 20-A of the 2010 POEA-SEC, which reads:
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:
xxx xxx
3. In addition to the above obligation of the employer to provide medical attention, xxx.
xxx xxx
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.
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. (Emphasis Supplied)
xxx xxx
Relative thereto, recent jurisprudence instructs that the observance of the above provision is mandatory. We cite Splash Philippines, Inc. v. Ruizo,[13] in which the Supreme Court elucidated, “if the seafarer consulted with a physician of his choice whose assessment disagrees with that of the company-designated physician, the disagreement must be referred to a third doctor for a final assessment, which shall be binding to the parties.”[14]
In this case, private respondent’s contract of employment with Petitioner was governed by the 2010 POEA-SEC, which expressly requires that disagreements as to disability must be referred to a third doctor whose findings shall be binding. It is unfortunate that herein private respondent failed to comply with the aforesaid conflict-resolution procedure. Had private respondent observed the procedure laid down in the POEA Contract, the disagreement could have been clarified or resolved at that point.[15] The question now is “what is the consequence of not referring the disagreement between the findings of the company-designated physician and the seafarer’s doctor-of-choice to a third doctor?” In the case of OSG Shipmanagement Manila, Inc., vs. Pellazar,[16] the Supreme Court ruled:
“Controversy arose, however, when Pellazar consulted a physician of his choice, whose findings are in conflict with those of the company-designated physicians. This conflict invariably leads to the question of whose findings should prevail.
The Court was faced with the same question in Philippine Hammonia v. Dumadag.[17] Applying the similar provisions in the POEA-SEC and in the parties’ CBA, the Court observed that the parties are bound by the terms and conditions contained in these instruments, particularly the above quoted provision on the mechanism prescribed to determine liability for a disability benefits claim. Since the seafarer pursued his claim before the labor tribunals without referring the conflicting opinions to a third doctor for final determination, the seafarer actually breached his contractual obligation. In reversing the labor tribunals’ rulings (and the CA which affirmed it), the Court said:
We find the rulings of the labor authorities seriously flawed as they were rendered in total disregard of the law between the parties — the POEA-SEC and the CBA — on the prescribed procedure for the determination of disability compensation claims, particularly with respect to the resolution of conflicting disability assessments of the company-designated physician and Dumadag’s physicians, without saying why it was disregarded or ignored; it was as if the POEA-SEC and the CBA did not exist. This is grave abuse of discretion, considering that, as labor dispute adjudicators, the LA and the NLRC are expected to uphold the law.
In the present case, since there is a conflict in the assessment of the company-designated physicians and Dr. Sabado’s certification in relation to Pellazar’s fitness or unfitness to work, the matter should have been referred to a third doctor for final determination as required by the POEA-SEC and the parties’ CBA. Since Pellazar was responsible for the non-referral to the third doctor because of his failure to inform the manning agency that he would be consulting Dr. Sabado, he should suffer the consequences of the absence of a binding third opinion. Thus, the NLRC was well within the bounds of its jurisdiction, in upholding the disability assessment of Drs. De Guzman and Banaga as against Pellazar’s physician of choice.” (Emphasis supplied)
Also in the case of Magsaysay Maritime Corporation vs. Simbajon,[18] the Supreme Court similarly ruled:
xxx xxx
Similarly, we note that Simbajon was the only one who knew of the conflicting results between Dr. Vicaldo’s findings with that of the petitioners’ designated physicians. The petitioners had no reason to consider a third doctor because they were not aware that Simbajon secured a separate independent opinion regarding his disability. Thus, the obligation to comply with the requirement of securing the opinion of a neutral, third-party physician rested on Simbajon’s shoulders. By failing to observe the required procedure under the POEA-SEC, he clearly violated its terms, i.e., the law between the parties. And without a binding third-party opinion, the fit-to-work certification of petitioners’ designated physicians prevails over that of Dr. Vicaldo’s unfit-to-return-to-work finding. (Emphasis supplied)
xxx xxx
Applying the foregoing jurisprudence, private respondent’s non-compliance with the POEA-SEC conflict-resolution procedure (referring to a third doctor) results in the affirmance of the fit-to-work certification of the company-designated physician.[19] Stated otherwise, the “fit to work” certification (which was issued within the 120 days period) of the company-designated physician prevails over the “permanent disability” certification of the private respondent’s doctor. Thus, We are left without any choice but to uphold the certification made by the company-designated physician that private respondent is “fit to resume sea duties”.[20] Hence, We are constrained to reverse the Decision of the NLRC and the Labor Arbiter inasmuch as their rulings were rendered in total disregard to 2010 POEA SEC (which is the law between the parties) and prevailing jurisprudence.
WHEREFORE, the instant petition is GRANTED. The Decision dated 29 November 2013 and Resolution dated 24 January 2014 of the National Labor Relations Commission (NLRC) in NLRC LAC No. (OFW-M) 10-000948-13, NLRC NCR Case No. (M) 03-04172-12 is ANNULLED and SET ASIDE. The complaint is hereby DISMISSED.
SO ORDERED.
De Leon, M.M., Chairperson and Antonio-Valenzuela, N.G., JJ., concur.
[1] Rollo, pp. 3-28
[2] Id., pp. 33-41
[3] Id., pp. 29-31
[4] Id., pp. 263-280
[5] See Rollo, p. 40
[6] See Contract of Employment, Id., 59
[7]
[8] Rollo, p. 134
[9] Id., pp. 263-280
[10] Id., pp. 29-31
[11] See Philman Marine Agency, Inc., (now Dohle-Philman Manning Agency, Inc., vs Cabanban, G.R. No. 186509, July 29, 2013
[12] G.R. No. 179802, November 14, 2008, 571 SCRA 239
[13] G.R. No. 193628, March 19, 2014
[14] See also Magsaysay Maritime Corp. v. Simbajon, G.R. No. 203472, July 9, 2014.
[15] Montoya vs Transmed Manila Corporation, G.R. No. 183329, August 27, 2009
[16] G.R. No. 198367, August 6, 2014
[17] G.R. No. 194362, June 26, 2013
[18] G.R. No. 203472, July 9, 2014
[19] See Ayungo v. Beamko Shipmanagement Corp., G.R. No. 203161, February 26, 2014
[20] Rollo, p. 62