REYNA SHIPPING SERVICES, INC., PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND RADNIER A. BOOC RESPONDENTS.
INTING, J.:
“WHEREFORE, foregoing premises considered, the appeal is PARTIALLY GRANTED and the appealed decision is SET ASIDE and VACATED. In lieu thereof, a new judgment is rendered ordering respondent Reyna Shipping Services, Inc. and Norbulk Manning Services, Ltd., through their responsible officers, to jointly and severally pay complainant Radnier A. Booc the following:
- P39,715.16 representing reimbursement for his medical expenses;
- US$3,224 or its equivalent Philippine currency at the time of payment representing his sickness allowance;
- US$60,000.00 or its equivalent Philippine currency at the time of payment representing his permanent total disability benefit; and
- Attorney’s fees equivalent to ten percent (10%) of the total amount of the awarded benefits.
SO ORDERED.”
The facts of the case are as follows:
Private respondent Radnier A. Booc was hired by herein petitioner Reyna Shipping Services, Inc. sometime in April 2011 for a 12-month contract as a fitter assigned to MV Alcantara Carrier.
While on board the vessel, the private respondent allegedly had two (2) accidents on separate occasions. The first was on August 12, 2011 when while trying to remove a lube oil cooler cover, he twisted his body and felt a snap on his lower back; and the second, on August 15, 2011 while standing, he accidentally fell on a checkered plate bar and landed on his buttocks. Private respondent sustained back injuries as a result of the aforementioned incidents which prompted him to request their vessel master Capt. Balan to allow him for a medical consultation. Per Doctor’s Requisition Form dated August 18, 2011, the private respondent was diagnosed with traumatic arthritis and was recommended to disembark to get medical attention and rest for two (2) weeks.[3] On the same day, the private respondent underwent a lumbar exam where he was found to have bony spurs along the lateral margins of the lumbar spine.[4] On August 19, 2011, the MRI of his lumbar spine came out with the impression: “disc degeneration and diffuse disc bulge, L4-5 and L5-S1, resulting to minimal central canal and bilateral foraminal stenosis at the same levels.”[5]
Meanwhile, Capt. Balan, in an email dated August 20, 2011, advised the petitioner that the private respondent has felt back pains since their arrival while performing his daily maintenance work job and thus will be sent to a doctor for medical check-up. The letter was received by the incoming vessel master Capt. Tampus who was to take over Capt. Balan.
On his follow-up consultation on August 22, 2011, the private respondent was urged to undergo physiotherapy three times a week for two weeks.[6]
In the meantime, the vessel was scheduled to leave port on August 24, 2011. The private respondent, fearing that any additional physical strain would aggravate his state, requested that he be left behind for treatment. The petitioner allegedly ignored his plea and disregarded the doctor’s instructions. The private respondent failed to embark and the ship sailed without him.
On September 30, 2011, the private respondent continued to feel the same pain as before and the physician attributed this on his failure to take his medications. Hence, the private respondent was again subjected to an additional two (2) weeks of Physical Therapy and encouraged to take his medications.[7]
Thereafter, the private respondent’s condition worsened. Per October 17, 2011 medical certificate,[8] he was already diagnosed with spinal radiculopathies, T/C fatty liver and was advised to see a gastroenterologist for work up of gastritis.
With inadequate finances, and knowing that his medical treatments would be compromised, the private respondent filed an action for monetary claims against the petitioner for underpayment of his salaries, overtime pay, disability benefits, and refund of medical expenses, damages, and attorney’s fees.
On the other hand, the petitioner presents a different account of events asseverating that the private respondent never informed Capt. Balan of the accidents that may have caused his back pains. The information was only reported when Capt. Tampus took over as master of the vessel. Since he was not present during the alleged unfateful incidents, he requested one of his men and the private respondent to make an incident/accident report. However, despite repeated demands, the private respondent was unable to submit the report which was a condition precedent for the reimbursement of his medical expenses and other refundable costs. Worse, on August 24, 2011, the private respondent failed to board the vessel. Capt. Tampus had no recourse but to leave port without the private respondent. This led the petitioner to file a complaint against the private respondent before the POEA Adjudication Office for unjustified breach of employment contract, desertion and insubordination.
The Labor Arbiter dismissed the private respondent’s complaint finding that the latter’s submission of the accident report is incumbent for the petitioner to process his medical claims and his stubborn refusal to do so cannot be countenanced.[9]
Aggrieved, the private respondent appealed to the NLRC contending that the accident report is not a condition precedent to a medical assistance; and that he is now totally and permanently disabled with his limited physical movements which would prevent him from getting deployed as a fitter again.[10]
In answer to the private respondent’s appeal, the petitioner maintains that it is the private respondent’s duty and obligation to submit the accident report; that his refusal proved the petitioner’s suspicions that the illness was not acquired during his employment with them; and that the illness must have been existing prior to his employment and was due to his age or wear and tear and not by the supposed accident. The petitioner likewise doubts that there was indeed an accident since no witnesses were presented by the private respondent.
Further, the petitioner avers that the private respondent’s doctor’s requisition is fabricated because as it appears, the doctor saw the private respondent as unfit for duty; however, upon clarification by the physician per letter dated January 25, 2012, he did not check the box indicating that the private respondent was unfit for duty since a traumatic arthritis will not justify such finding as the illness can be relieved by medication. Thus, the private respondent was just advised to disembark to undergo further work up.[11]
Furthermore, the petitioner adds that private respondent should not be allowed to raise as an issue his alleged permanent disability since this was not raised before the arbiter but was only brought up for the first time in the private respondent’s position paper. Even if it will be given consideration, the private respondent’s claims cannot hold water because there was no showing that he could no longer perform his job for more than 120 days and the physician’s recommendation for him to merely disembark to get medical attention and rest for two (2) weeks belie the allegation of total and permanent disabilities. Moreover, there was no medical opinion of the company designated physician as to the private respondent’s claimed disability which is necessary for him to be entitled to such claims.
The petitioner also denied that the private respondent requested that he be allowed to stay in Davao for his treatment. On the contrary, the private respondent purportedly left the vessel without permission abandoning his post. The medical findings suggest that the private respondent disembark to have himself examined on shore and rest for two (2) weeks. This, however, means that he should rest on board and not anywhere else.[12]
The NLRC rendered the impugned Decision finding: that the conditions for the compensability of the private respondent’s disability namely: 1.) that the injury/illness was suffered during the term of the contract; and 2.) that it was reasonably connected/ related to the sea farer’s work, were met as the private respondent’s injury occurred during his employment with the petitioner; that while there was no direct evidence that there was an accident which caused his back pains, it can be reasonably supposed that his illness could have probably been caused in the course of performing his work which involved heavy lifting and crouching, hence putting physical strain on his torso and back; that actual proof of the cause is not necessary to justify compensability but only probability and substantial proof; that the accident report is not material because the private respondent is not suing for the injuries caused by the accident but for the illness he suffered arising from the performance of his work; that the private respondent is entitled to a free medical treatment until he is declared fit to work; that the doctor’s recommendation was for him to rest for two (2) weeks which was the reason for his failure to report to work and board the vessel; that the petitioner was duly notified of the private respondent’s ordeal, hence the latter had substantially complied with the mandatory reporting to entitle him to his sickness allowance and claims for total and permanent disability; and that as per medical record, he is no longer fit to perform his usual work or any work of similar nature, and the failure to have himself examined by a company designated doctor is not his fault as it was the petitioner which neglected to refer him to a company designated doctor.
The petitioner’s motion for reconsideration was denied.
Hence, this petition with a prayer for writ of preliminary injunction imputing grave abuse of discretion by the public respondent NLRC. The petitioner avers that NLRC could not ascertain that the alleged accident caused the private respondent’s back pains; that the private respondent already had this illness even before he was employed with them, hence his refusal to make an accident report despite repeated demands to avoid discovery by the company physician thus, he should not be entitled to the total and permanent disability benefits; that aside from the fact that the private respondent failed to have himself checked before the company doctor, there was also no proof that he could no longer perform his job for more than 120 days; and that the Doctor’s Requisition Form is fake as the physician denied that he diagnosed the private respondent as unfit for duty.
The writ for preliminary injunction was granted per May 2, 2014 Resolution.[13]
Our Ruling
Petition is partly with merit.
The special civil action for certiorari under Rule 65 is intended to correct errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction.[14] Grave abuse of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction.[15]
Was the NLRC guilty of arbitrariness in holding the petitioner liable for the private respondent’s medical reimbursement, sickness allowance, and disability benefits?
I. Medical Reimbursement.
Section 20 of the amended standard terms and conditions governing overseas employment of Filipino seafarers (2000 POEA-SEC) provides that the employer shall be liable when the seafarer suffers work-related injury or illness during the term of his contract and if the seafarer requires medical treatment in a foreign port, the employer shall be liable for the full cost of such medical or hospital treatment as well as board and lodging until the seafarer is declared fit to work or repatriated. 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.
Two (2) elements must concur for an injury or illness of a seafarer to be compensable. First, the injury must be work-related; and second, that the work-related injury or illness must have existed during the term of the seafarer’s employment contract.[16] A work-related injury or illness are defined as those resulting in disability or death arising out of and in the course of employment or any sickness resulting to disability or death as a result of an occupational disease listed under Section 32 of the 2000 POEA-SEC with the conditions therein satisfied.[17]
Here, the private respondent was diagnosed with having traumatic arthritis which occurs following an injury, excessive movement or physical trauma and caused by among others, sports injury, car accident, blunt force trauma, fall, injury at work, fracture or overuse and these result to damage to the articular cartilage resulting in pain, swelling and tenderness.[18] There is not a cure for this but it is possible to minimize the pain and other symptoms of this condition.[19] It is important to seek immediate help for traumatic arthritis as any delay thereof can lead to prolonged problems such as osteoarthritis.[20] In his succeeding lumbar examinations, the private respondent was diagnosed with disc degeneration, disc bulge, foraminal stenosis and spinal radiculopathies aside from having a fatty liver.
A degenerative disc disease (DDD) in the lumbar spine or lower back refers to a syndrome in which a compromised disc causes low back pain.[21] Although there is a genetic component to individuals who suffer from DDD, the true cause is probably multifactorial. It could be from simple wear and tear, or may have a traumatic cause.[22] A bulging disc is attributed to several factors including poor posture, a sudden unexpected load to the intervertebral discs which can occur in traumatic situations which may happen due to the nature of the sudden force exerted through the body at the time of the impact, poor lifting techniques such as bending forward and pulling with one’s back.[23] Other factor is environmental in nature such as excessive abdominal fat, poor core stability, poor lower limb strength and nature of occupation.[24] Lumbar Foraminal Stenosis is caused by a number of different spinal issues such as degenerative disc disease, bone spurs, herniated disc, bulging disc and osteoarthritis.[25] Radiculopathy is a pinched nerve in the spine that occurs when surrounding bones, cartilage, muscle, or tendons deteriorate or are injured. The trauma causes these tissues to change position so they exert extra pressure on the nerve roots in the spinal cord.[26]
From the foregoing, it cannot be denied that the pain and injuries suffered by the private respondent are work-related. As a fitter, his duties included the lifting of heavy objects or equipment and working in confined spaces in a crouching position that would unavoidably put physical strain on his lower back. Following such line of work, it is not therefore, beyond the bounds of probability for the private respondent to contract trauma on his spine upon which his diagnosis were founded. Granting that the private respondent’s age may have contributed to such injury, We cannot disregard the fact that his kind of task is the major component that agitated and caused the trauma resulting to his illness. Even if the private respondent’s ailment may not have been wholly caused by his job, this does not negate his compensation. What the law requires is a reasonable work connection and not a direct causal relation.[27]
Settled is the rule that for illness to be compensable, it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer.[28] It is sufficient that there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.[29] Even if the illness is not listed under the POEA standard contract as an occupational diseases or illness, it will still be presumed as work-related, and it becomes incumbent on the employer to overcome the presumption.[30] A mere aggravation of the illness by working conditions will suffice to warrant entitlement to the benefits. The presumption of compensability stands.[31]
We concur with the NLRC that the petitioner failed to overthrow the presumption that the private respondent’s illness, although not listed as occupational, is work-related. There is overwhelming evidence that the private respondent’s work brought about his lower back injury or at least aggravated it while he was in the course of his employment and during the duration of his contract with the petitioner. Hence, the elements for his medical compensation were indubitably established and the NLRC committed no grave abuse of discretion in granting it.
II. Sickness Allowance.
The amended standard terms and conditions governing overseas employment of Filipino seafarers also indicate that the seafarer shall receive sickness allowance from his employer in an amount equivalent to his basic wage computed from the time he signed off until he is declared fit to work or the degree of disability has been assessed by the company-designated physician. The period within which the seafarer shall be entitled to his sickness allowance shall not exceed 120 days. The seafarer shall also be entitled to reimbursement of the cost of medicines prescribed by the company-designated physician. 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 his treatment, the seafarer shall also report regularly to the company-designated physician. Failure of the sea-farer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.
The petitioner avers that the private respondent is not entitled to the above benefit because he did not only fail to submit himself to a company-designated physician but he also violated his employment contract when he abandoned the vessel and failed to board it without justifiable reasons.
We are not persuaded that the petitioner was unaware of the private respondent’s situation. The doctor’s requisition form was to be completed by the doctor who is asked to return it to the master. Hence, it would be unusual for the petitioner not to be informed of the private respondent’s diagnosis. This was also bolstered by the fact that the master already knew of the private respondent’s complaint of back pains while the latter was performing his daily maintenance work job. The petitioner was well-aware that the private respondent was experiencing a medical problem and undergoing treatment. With that information, the petitioner should have referred the private respondent to their designated physician to follow-up on the latter’s diagnosis and findings. In the case of Career Philippines Ship Management, Inc. v, Serna,[32] the Supreme Court prompts that the obligation imposed by the mandatory reporting requirement is not solely on the seafarer but also requires the employer to act on the report and in this sense partakes of the nature of a reciprocal obligation. The High Court went on to hold that while the mandatory reporting requirement obliges the seafarer to be present for the post-employment medical examination, which must be conducted within three (3) working days upon the seafarer’s return, it also poses the employer the implied obligation to conduct a meaningful and timely examination of the seafarer. Although the facts in the afore-cited case of Serna are not in four squares with herein case, the essence of the Supreme Court’s ruling emphasizing that it is also the reciprocal obligation and duty of the employer to refer their employee to a designated physician is in all respects likewise applicable to the case at hand. It is therefore, herein petitioner’s responsibility to have had designated a physician to look after the private respondent especially because they were already notified of the private respondent’s situation. Accordingly, the petitioner cannot anchor their refusal to compensate the private respondent just because he failed to have himself examined by a company-designated physician. The private respondent cannot be solely accountable for such inadvertence as the petitioner was also remiss in fulfilling its obligation to refer their designated doctor to the private respondent. Further, the notice given to the petitioner on the private respondent’s ailment is already substantial compliance with the reportorial requirement.
Undeniably, the doctor did not categorically state that the private respondent was unfit for duty at the time he was examined in August 18, 2011. However, during his succeeding medical examinations, the private respondent was recommended to undergo therapy sessions in addition to his medications. In his follow-up tests, his condition did not appear better or improved, hence his medications and therapy sessions were even increased to another two (2) weeks. Apparently, the private respondent was no longer fit to work during that period taking into account the kind of work he does lest his condition could worsen. It bears noting that despite the rest he was accorded in August, his September test showed that he continued to experience the same pains hence the continued therapy sessions.
Therefore, We cannot sustain the petitioner’s claims of private respondent’s abandonment and failure to have the examination before the company designated doctor considering that the petitioner was already informed of the private respondent’s ordeal and the latter’s failure to have himself tested by the company-designated physician could not exclusively be attributed to him. The private respondent convincingly showed that during the time the vessel left, he was not in a competent position to work or to ignore his treatments.
III. Disability Benefits.
In the case of Kestrel Shipping Co. v. Munar,[33] the Supreme Court defines a permanent disability as the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body; while a total disability is defined as the disablement of an employee to earn wages in the same kind of 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 attainments could do.
Under Section 32 of the POEA-SEC, only those injuries or disabilities that are classified as Grade 1 may be considered as total and permanent. However, in the case of Munar[34], the Supreme Court held that an impediment should be characterized as partial and permanent not only under the schedule of disabilities found in Section 32 of the POEA-SEC but should be so under the relevant provisions of the Labor Code and the Amended Rules on Employee Compensation implementing Title II, Book IV of the Labor Code. That while the seafarer is partially injured or disabled, he is not precluded from earning doing the same work he had before his injury or disability or that he is accustomed or trained to. Otherwise, if his illness or injury prevents him from engaging in gainful employment for more than 120 or 240 days, as the case may be, he shall be deemed totally and permanently disabled.[35] The company-designated physician is expected to arrive at a definite assessment of the seafarer’s fitness to work or permanent disability within the period of 120 or 240 days. That should he fail to do so and the seafarer’s medical condition remains unresolved, the seafarer shall be deemed totally and permanently disabled.[36]
In the case of C.F. Sharp Crew Management, Inc. v. Taok,[37] the Supreme Court explains:
“As these provisions operate, the seafarer, upon sign-off from his vessel, must report to the company-designated physician within three (3) days from arrival for diagnosis and treatment. For the duration of the treatment but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally unable to work. He receives his basic wage during this period until he is declared fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA Standard Employment Contract and by applicable Philippine laws. If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. The seaman may of course be declared fit to work at any time such declaration is justified by his medical condition.”
It was not doubted that the private respondent was prevented from working when he incurred his work-related illness diagnosed on August 18, 2011. This was due to the fact that he was subjected to rest, medication, and therapy sessions which were extended until about September of the same year. Even without any findings by the company-designated physician, partly due to the petitioner’s failure to refer one to the private respondent, the private respondent’s doctors’ findings and recommendations sufficed to persuade that he was not yet fit to embark and work but instead needed the rest and the therapy.
Nevertheless, it is worthy to stress that although the private respondent was diagnosed with radiculopathy per October 17, 2011 medical certificate, the physician no longer suggested that he continue to do his therapy sessions and his back pain medications. The receipts also showed that the private respondent only had therapy sessions until August 2011. The private respondent’s injury or illness is manageable, and in fact, the pain from the lumbar degenerative disc eventually decreases over a period of time.[38] Essentially, the private respondent’s illness could be treated by rest, medication and exercise and based on his latest medical check-up, although he still had spinal radiculopathies, his physician no longer prescribed further medications in relation thereto nor was he urged to continue his therapy or rest. Gleaned therefrom, there was no longer any impediment for the private respondent to report for work. There was no sufficient proof to show that the additional diagnosis on the private respondent, particularly his fatty liver and gastritis were work-related. True, that total disability does not mean total helplessness and in disability compensation, it is not the injury which is compensated but rather the incapacity to work resulting in the impairment of one’s earning capacity.[39] However, in the case herein, there was not enough convincing evidence to show that the private respondent’s earning capacity was compromised nor was there sufficient proof to show that he was not fit to work for more than 120 days. Neither can the private respondent be considered as permanently disabled because nothing was proffered to confirm such findings.
As held in Millan v. Wallem Maritime Services, Inc.: [40]
“A seafarer’s inability to resume his work after the lapse of more than 120 days from the time he suffered an injury and/or illness is not a magic wand that automatically warrants the grant of total and permanent disability benefits in his favor.”
Indeed, no company-designated physician declared that the private respondent was fit to work and the 120 day period had already lapsed. However, neither did the private respondent’s physician certify that he could no longer work or that he is unfit for duty after his last consultation. His total and permanent disability is unfounded.
In this regard, We find that the NLRC committed grave abuse of discretion in granting the disability benefits to the private respondent notwithstanding unsatisfactory proof thereof. Accordingly, although the private respondent is entitled to his sickness allowance, he failed to convince that he is likewise entitled to the total and permanent disability benefits.
WHEREFORE, the instant petition is PARTLY GRANTED. The December 28, 2012 Decision and the March 27, 2013 Resolution of the National Labor Relations Commission 8[th] Division, Cagayan de Oro City are hereby AFFIRMED with MODIFICATION. The award for total and permanent disability is DELETED. All other awards are sustained.
The writ of preliminary injunction heretofore issued is partially lifted such that the execution, in so far as the awards for medical reimbursement, sickness allowance, and attorney’s fee are concerned, may immediately proceed. The writ of preliminary injunction against the execution of the total and permanent disability award is made permanent.
SO ORDERED.
Borja, (Chairperson), and Lloren, JJ., concur.
[1] Rollo, pp. 28-36.
[2] Rollo, p.39.
[3] Rollo, p. 80.
[4] Rollo, p. 83.
[5] Ibid, p. 84.
[6] Ibid, p. 85.
[7] Ibid, p. 86.
[8] Ibid, p. 87.
[9] Rollo, pp. 109-114.
[10] Ibid, pp. 128-145.
[11] Ibid, p. 155.
[12] Rollo, pp. 115-123.
[13] Rollo, pp. 277-280.
[14] C.F. Sharp Crew Management, Inc. et.al. v. Taok, G.R. No. 193679, July 18, 2012.
[15] Ibid.
[16] Magsaysay Maritime Services v. Laurel, G.R. No. 195518, March 20, 2013.
[17] Ibid.
[18] http://www.medic8.com/healthguide/arthritis/traumatic-arthritis.html
[19] Ibid.
[20] Ibid..
[21] http://www.spine-health.com/conditions/degenerative-disc-disease/lumbar-degenerative-disc-disease-ddd
[22] Ibid.
[23] http://www.physioworks.com.au/injuries-conditions-1/bulging_disc
[24] Ibid.
[25] http://www.laserspineinstitute.com/back_problems/foraminal_stenosis/lumbar
[26] http://www.healthline.com/health/radiculopathy#Overview1
[27] Gabunas v. Scanmar Maritime Services, Inc., G.R. No. 188637, December 15, 2010.
[28] Supra.
[29] Supra.
[30] Supra.
[31] Supra.
[32] G.R. No. 172086, December 3, 2012.
[33] G.R. No. 198501, January 30, 2013.
[34] Ibid.
[35] Supra.
[36] Supra.
[37] G.R. No. 193679, July 18, 2012.
[38] Supra.
[39] Supra.
[40] G.R. No. 195168, November 12, 2012.