G.R. No. 163838 - Wallem Maritime Services, Inc. et al. v. NLRC, et al.
THIRD DIVISION
[G.R. No. 163838 : September 25, 2008]
WALLEM MARITIME SERVICES, INC. AND WALLEM SHIP- MANAGEMENT HONGKONG, LIMITED, Petitioners, v. NATIONAL LABOR RELATIONS COMMISSION AND TIBURCIO D. DELA CRUZ, Respondents.
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the May 28, 2004 Court of Appeals (CA) Decision,1 which affirmed with modification the May 26, 2003 Decision2 and October 30, 2003 Resolution3 of the National Labor Relations Commission (NLRC) on the claim for disability benefits of Tiburcio D. dela Cruz (respondent) against Wallem Maritime Services, Inc. (WMSI) and Wallem Shipmanagement Hongkong Limited, (WSHL).
The material facts are of record.
Petitioner WMSI, acting as manning agent of petitioner WSHL, hired respondent as messman under an employment contract which provides:
1.1. Duration of Contract: 9 Months 1.2. Position: Messman
1.3. Basic Monthly Salary: US$407.00 1.4. Hours of Work: 44 Hours/Week
1.5. Overtime: US$226.2/mo.for 85 hrs. 1.6. Vacation Leave with Pay -
US$2.66/hr.
Excess Overtime'
US2.66/hr.
1.7. Point of Hire MANILA Seniority Pay -
US5.25/Month
The terms and conditions of the Revised Employment contract [POEA-SEC] governing the employment of Filipino seafarers approved per Department Order No. 33 and Memorandum Circular No. 55, series of 1996, shall be strictly and faithfully observed.4
Respondent was deployed on November 1, 19995 to board his vessel M/V Vanadis at Fujairah, United Arab Emirates where his work as messman involved manually carrying and loading seastores/supplies.
Sometime in March 2000, respondent complained of pain on his left groin radiating to his lower back area. He was examined in Fujairah by petitioner's accredited physician, who issued a medical certificate that respondent was not fit to resume sea duties.6 Thus, on March 22, 2000, respondent was repatriated to the Philippines where, from March 23, 2000 through November 22, 2000, he was examined and treated at the Metropolitan Hospital under Dr. Robert D. Lim and other physicians accredited with petitioners.
Petitioners paid for the costs of respondent's treatment.7 They also paid him sickness allowance equivalent to his monthly wage, but only for the period of 120 days or from March 23, 2000 to July 24, 2000.8
On November 22, 2000, Dr. Lim issued the following medical report:
This is a follow-up report on Mr. Tiburcio dela Cruz diagnosed to have disc dessication, L3-4 and L4-L5 decompression laminectomy, L4-L5 on May 27, 2000.
Patient was initially seen here at Metropolitan Hospital on March 23, 2000.
He has been under the care of our orthopedic surgeon.
He is now asymptomatic.
Our orthopedic surgeon opines that patient is now fit to work.
He was pronounced fit to resume sea duties as of November 22, 2000.
Final diagnosis - Disc dessication, L3-L4 and L4-L5
- S/P Decompression Laminectomy, L4-L5.9 (Emphasis supplied)cralawlibrary
Respondent signed a Certificate of Fitness for Work whereby he released petitioners from any liability for his injury.10
On August 2, 2001, respondent filed with the NLRC Arbitration Branch (Labor Arbiter) a Complaint against petitioners for payment of permanent total disability benefits in the amount of US$50,000.00.11 Claiming that the November 22, 2000 fit-to-work medical report issued by Dr. Lim was false, respondent argued that he was actually suffering from a total permanent disability as established by the following evidence: first, he was certified not fit to work by petitioners' accredit physician in Fuijairah (Annex "C");12 and second, the Overseas Workers' Welfare Administration (OWWA) issued to him an Impediment Grade - Medical Evaluation Report (Annex "E"), which stated that he was suffering from an impediment grade six and that he was entitled to 50% disability benefits.13
Petitioners disputed the factual basis of respondent's claim.14
In a Decision dismissing the complaint, the Labor Arbiter (LA) held that Dr. Lim's medical report was conclusive, because the latter was the company-designated physician who actually examined and treated respondent for eight months.15 Dr. Lim's findings could not be overturned by a contrary medical report issued by a doctor at OWWA who did not actually examine respondent but merely referred to earlier medical reports on the latter's condition prior to treatment.16 Neither can Dr. Lim's findings be outweighed by the medical report issued in Fujairah months before respondent underwent treatment in the Philippines.17
Respondent appealed to the NLRC which issued a Decision dated May 26, 2003 reversing the LA Decision and partly granting respondent's claim, thus:
x x x To our mind, complainant-appellant submitted substantial and preponderant evidence to support his claim for disability pay taking into consideration the fact that it was the company physician in Fujairah, designated by respondent-appellee [herein petitioners] Wallem Shipmanagement Limited itself who declared respondent unfit for duty, which declaration held ground even after the lapse of the 120 days treatment period. We also considered the fact that complainant-appellant was never again summoned for sea duty by respondents-appellees, a fact which likewise reasonably lead to the conclusion that he is no longer fit for work.
The only thing left is the determination of the rightful amount which complainant-appellant [herein respondent] shall be entitled to receive under the circumstances of the instant case. We cannot, however, award total or one hundred percent disability pay in favor of complainant [herein respondent] for lack of basis for such amount. Submitted by complainant-appellant [herein respondent] on record is an Impediment grade of Six (6) issued by the Overseas Worker's Welfare Administration (OWWA), an agency tasked to provide or facilitate welfare benefits for both seabased and landbased overseas Filipino workers.
x x x
WHEREFORE, after extended and careful deliberations on both factual circumstances and legal conclusions herein considered, the assailed decision of the Labor Arbiter dated 14 September 2001 is hereby REVERSED and SET ASIDE. Respondents-appellees [herein petitioners] are ordered to pay complainant-appellant [herein respondent] his disability benefit in the amount of twenty-five thousand U.S. dollars (US$25,000.00) or its Philippine peso equivalent at the time of actual payment plus attorney's fees of twenty-five percent (25%) of said amount or an aggregate sum of thirty-seven thousand five hundred U.S. Dollars (US$37,500.00) or its equivalent in Philippine pesos at the time of actual payment.
SO ORDERED.18 (Emphasis supplied)cralawlibrary
Petitioners filed a motion for reconsideration but the NLRC denied it.19
Petitioners questioned the NLRC decision and resolution before the CA but the latter affirmed the same, albeit with modification, to wit:
WHEREFORE, the Decision dated May 26, 2003 rendered by the public respondent National Labor Relations Commission in NLRC CA No. 030814-02 (NLRC OFW (M) 2001-06-278-30) is hereby AFFIRMED with modification that the twenty-five (25%) percent attorney's fees is hereby DELETED.
SO ORDERED.20
Without first filing a motion for reconsideration from the CA Decision, petitioners sought its reversal by the Court on the following grounds:
5.1. The Honorable Court of Appeals gravely erred when it refused to correct or to reverse the palpably erroneous interpretation made by the National Labor Relations Commission of Section 20 [B]{3} of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels.
5.1.1. Section 20[B][3] of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels could not have been intended to force or to constrain shipowner's accredited doctors to either declare an ailing seafarer fit to resume sea duties or permanently disabled within a period of one hundred twenty (120) days. To interpret Section 20 [B][3] of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels as forcing or constraining ship-owners' accredited doctors to either declare an ailing seafarer fit to resume sea duties or permanently disabled within a period of only one hundred twenty (120) days would be to defeat the very purpose of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels which is to ensure that Filipino seafarers are able to obtain the best possible terms of employment.
5.2. Had the Honorable Court of Appeals, in the exercise of its jurisdiction over the subject Petition for Certiorari filed before it, chosen to correct or to reverse the palpably erroneous interpretation made by the National Labor Relations Commission of Section 20 [B][3] of the Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels, it would have been left with no recourse but to affirm the Decision dated 22 October 2001 issued by the Hon. Labor Arbiter Napoleon M. Menese.
5.2.1. The evidence adduced by the parties before the Hon. Labor Arbiter Napoleon M. Menese very plainly establishes the lack of merit of respondent's claim for disability compensation.21
Petitioners' recourse is in vain.
The terms and conditions of the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC) which the parties incorporated into their employment contract grant respondent compensation and benefits should he suffer from an illness or injury, subject to the following conditions:
Section 20-B. Compensation and Benefits for Injury or Illness. - The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows:
1. The employer shall continue to pay the seafarer his wages during the time he is on board the vessel.
2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated.
However, 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.
3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days.
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. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. (Emphasis supplied)cralawlibrary
The NLRC interpreted Section 20-B(3) to mean that if a seafarer is repatriated on the basis of a certification issued by a company-designated physician overseas that said seafarer is not fit to resume sea duties, such finding shall remain valid until the seafarer is declared fit to work by the company-designated physician in the Philippines; but if, after 120 days from the repatriation of the seafarer, no such fit-to-work declaration is made by the company-designated physician in the Philippines, the presumption will arise that the seafarer suffered from a permanent disability based on the earlier not-fit-to-work assessment made by the company-designated physician overseas. In the case of respondent, the NLRC ruled that the assessment by petitioners' accredited physician in Fujiarah that respondent was not fit to work held sway because Dr. Lim failed to overturn such finding within 120 days from respondent's repatriation.22
The CA sustained this view of the NLRC.23
In disputing the foregoing interpretation of the CA and the NLRC, petitioners argue that the initial assessment made by a company-designated physician abroad is intended for no other purpose than to determine whether a seafarer should be repatriated or not.24 Such initial assessment cannot influence any decision on the fitness of a seafarer to perform sea duties for, under Section 20-B(3), it is only the local company-designated physician - -in the present case, Dr. Lim - - who can pronounce whether the seafarer suffers from some disability.25
Moreover, petitioners contend that, contrary to the view adopted by the CA and the NLRC, Section 20-B(3) does not set any time limit within which the local company-designated physician should issue an assessment, just as there is no time limit within which the seafarer can avail himself of treatment free of cost. The 120-day limit found in Section 20-B(3) refers merely to the period within which the seafarer shall be paid sickness allowance, but it has nothing to do with when the latter should be assessed fit or not fit for duty. Petitioners explain that if it is made mandatory on the company-designated physician to declare within 120-days that the seafarer is fit or not fit for duty, the effect would be to also restrict to a period of 120 days the entitlement of said seafarer to free medical treatment.26
The Court agrees with the result of the CA decision, but differs with the CA's adoption of the NLRC interpretation of Section 20-B(3), just as it disagrees with petitioners' interpretation of said provision.
The more accurate view of Section 20-B(3) of the POEA-SEC is that espoused by respondent. In his Comment27 and Memorandum,28 respondent cited Remigio v. National Labor Relations Commission29 in which the Court referred to the definition of permanent disability under the Labor Code to interpret Section 20-B(3), thus:
The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to "secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith" and to "promote and protect the well-being of Filipino workers overseas." Section 29 of the 1996 POEA SEC itself provides that "[a]ll rights and obligations of the parties to [the] Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory." Even without this provision, a contract of labor is so impressed with public interest that the New Civil Code expressly subjects it to "the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects."
Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers x x x.30
There are three kinds of disability benefits under the Labor Code, as amended by P.D. No. 626: (1) temporary total disability, (2) permanent total disability, and (3) permanent partial disability. Section 2, Rule VII of the Implementing Rules of Book V of the Labor Code differentiates the disabilities as follows:
Sec. 2. Disability. - - (a) A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules.
(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X of these Rules.
(c) A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body. (Emphasis supplied)cralawlibrary
Applying the foregoing definition of permanent disability, the Court therein held that, notwithstanding the certification issued by the company-designated physician that in 8-10 months the seafarer therein may already work as a pianist, the fact remains that for the past 11 to 13 months, the latter had not been able to perform his customary work as a drummer, and "this, by itself, already constitutes permanent total disability."
The foregoing concept of permanent disability has been consistently employed by the Court in subsequent cases involving seafarers, such as in Crystal Shipping, Inc. v. Natividad, in which it was reiterated that permanent disability means the inability of a worker to perform his job for more than 120 days.31 Also in Philmare, Inc. v. Suganob,32 notwithstanding the opinion of the company-designated physician that the seafarer therein was fit to work provided he regularly took his medication, the Court held that the latter suffered from permanent disability in view of evidence that he had been unable to work as chief cook for more than 7 months. Similarly, in Micronesia Resources v. Cantomayor33 and United Philippine Lines, Inc. and/or Holland America Line, Inc. v. Beseril,34 the Court declared the seafarers therein to have suffered from a permanent disability after taking evidence into account that they had remained under treatment for more than 120 days, and were unable to work for the same period.
Thus, it is not accurate to state - - as the CA and the NLRC did - that respondent is presumed permanently disabled just because, after 120 days from his repatriation due to injury, he was not declared fit to resume sea duty by Dr. Lim. Nor would it be correct for petitioners to claim that respondent does not suffer from permanent disability just because at the end of an 8-month period of evaluation and treatment, Dr. Lim had declared him fit to work. Rather, the true test of whether respondent suffered from a permanent disability is whether there is evidence that he was unable to perform his customary work as messman for more than 120 days.
Under Section 20-B(3) of the POEA-SEC, it is a requirement sine qua non to the filing of a claim for disability benefit that the claimant seafarer be examined by a company-designated physician within three days from his repatriation. But whatever medical report said company-designated physician may issue will not be conclusive on the claimant, for the latter may dispute said report by promptly consulting a physician of his own choice. However, neither the medical report issued by the company-designated physician nor the medical report issued by claimant's physician of choice is binding on the labor tribunals and the courts, for both reports will have to be evaluated based on their inherent merit.35
In a number of cases, the Court disregarded the medical report issued by the company-designated physician that the seafarer was fit to work in view of evidence of record that the latter had in fact been unable to engage in his regular work for more than 120 days.36
Indeed, the records of the present case are replete with evidence that respondent was unable to resume work as messman for more than 120 days from his repatriation. The evidence consist of medical records that from March 23 to 27, 2000, respondent underwent EMG-NCV of the lumbar area and renal ultrasound but the results in both were negative.37 On April 10, 2000, respondent underwent EMG-NCV and Magnetic Resonance Imaging of the lumbosacral spine, and the result showed that he suffered from a mild disc dessication bulging L3-L4, L4-L5,38 for which he was advised to continue physical therapy for another month.39 On May 26, 2000, respondent was admitted for laminectomy and discectomy, after which he remained confined in the hospital where he was placed in a chairback brace for immobilization and provided occupational and physical therapy. It was only on June 7, 2000 that he was discharged.40 Over several weeks, respondent regularly returned for check up with Dr. Lim who advised him to continue rehabilitation.41 Upon check up on July 14, 2000, respondent complained of lumbosacral pain, for which he was advised to continue physical therapy.42 On that occasion, Dr. Lim expressly stated in his medical report that "[b]ased on his present medical condition, patient will not be fit to resume sea duties in approximately 2-3 months time."43 On July 28, 2000, respondent complained of the same pain and was advised to undergo re-evaluation and repeat EMG-NCV studies.44 Thus, on August 18, 2000, Dr. Lim again issued his finding that "[based] on his present medical condition, patient will not be fit to resume sea duties for the next two months barring unforeseen events."45
In all, respondent was under medical evaluation and treatment for almost eight months. During that period, he was unable to resume his work as messman. In fact, twice within that period, Dr. Lim certified that he was not fit to resume sea duties. Certainly, the foregoing evidence conclusively established that respondent had suffered from a permanent disability.
As to whether respondent's permanent disability was total or partial, the Court cannot alter the concurrent finding of the CA and the NLRC, as respondent did not appeal therefrom.
WHEREFORE, the petition is DENIED. The Decision dated May 28, 2004 of the Court of Appeals is AFFIRMED.
No costs.
SO ORDERED.
Ynares-Santiago, J., (Chairperson), Chico-Nazario, Nachura, and Reyes, JJ., concur.
Endnotes:
1 Penned by Associate Justice Perlita J. Tria Tirona with the concurrence of Associate Justices Conrado M. Vasquez, Jr. and Jose C. Reyes, Jr.; rollo, p. 36.
2 Id. at 23.
3 Id. at 32.
4 Rollo, p. 205.
5 Id. at p. 206.
6 There is no copy of the medical certificate on file, but petitioners do not dispute its existence and due execution. In their Petition for Review, petitioner cited the not-fit-to-work medical certificate issued by its accredited physician in Fujairah (id. at 79-80).
7 Id. at 185-188.
8 Id. at 189-192.
9 Rollo, p. 109.
10 CA rollo, p. 82.
11 Id. at 195. It is noted that copies of the position paper in both the rollo and CA rollo do not contain page 5.
12 Complainant's Position Paper, rollo, p. 198.
13 Id.
14 Id. at 177.
15 LA Decision, rollo, pp. 103-104, 106.
16 Id at 104-105.
17 Id. at 105.
18 NLRC Decision, rollo, pp. 29-30.
19 Id. at 32.
20 Id. at 45-46.
21 Petition, rollo, pp. 72-73.
22 Supra note 18.
23 CA Decision, rollo, pp. 41-42.
24 Petition, id. at 78-79.
25 Memorandum, id. at 567, 576.
26 Rollo, pp. 570-572.
27 Id. at 485-490.
28 Id. at 594-600.
29 G.R. No. 159887, April 12, 2006, 487 SCRA 190.
30 Citing Crystal Shipping, Inc. v. Natividad, G.R. No. 154798, October 20, 2005, 473 SCRA 559.
31 See Resolution in G.R. No. 154798, February 12, 2007.
32 G.R. No. 168753, July 9, 2008.
33 G.R. No. 156573, June 19, 2007, 525 SCRA 42.
34 G.R. No. 165934, April 12, 2006, 487 SCRA 248.
35 Maunlad Transport, Inc. v. Manigo Jr., G.R. No. 161416, June 13, 2008, citing Crystal Shipping, Inc. v. Natividad, supra note 30, Philippine Transmarine Carriers, Inc. v. National Labor Relations Commission, G.R. No. 156573, June 19, 2007, 525 SCRA 42 and Cadornigara v. National Labor Relations Commission, G.R. No. 158073, November 23, 2007, 538 SCRA 363.
36 Palisoc v. Easways Marine, Inc., G.R. No. 152273, September 11, 2007, 532 SCRA 585; Philimare, Inc. v. Suganob, supra note 32.
37 Annexes "2" and "3" for petitioners, rollo, pp. 217-218.
38 Annex "5" for petitioners, id. at 221.
39 Id.
40 Annex "9" of petitioners, id. at 223-224.
41 Annex "10" of petitioners, id. at 225-226.
42 Annex "11" of petitioners, id. at 227.
43 Id.
44 Annex "12" of petitioners, id. at 228.
45 Annex "13" of petitioners, id. at 229.
