SECOND DIVISION
G.R. No. 211882, July 29, 2015
ELBURG SHIPMANAGEMENT PHILS., INC., ENTERPRISE SHIPPING AGENCY SRL AND/OR EVANGELINE RACHO, Petitioners, v. ERNESTO S. QUIOGUE, JR., Respondent.
D E C I S I O N
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the July 5, 2013 Decision1 and the March 25, 2014 Resolution2 of the Court of Appeals (CA), in CA-G.R. SP No. 125064, which affirmed the February 16, 2012 and March 30, 2012 Resolutions of the National Labor Relations Commission (NLRC), in LAC No. 01-000014-12, a case where the certification of the company-designated physician on the claimed disability of the seafarer was issued beyond the 120-day period.
The Facts:
Respondent Ernesto S. Quiogue Jr. (Quiogue) was hired by Elburg Shipmanagement Philippines, Inc., for and on behalf of its principal Enterprise Shipping Agency SRL (petitioners), to work as Able Bodied Seaman on board the vessel MT Filicudi M with a basic salary of US$363.00. The employment contract was governed by the Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) and the International Transport Workers Federation Total Crew Cost Collective Bargaining Agreement (ITF TCC CBA), providing for higher benefits in the event of disability or death of a worker.
On November 11, 2010, while Quiogue was on duty transferring the fire wire, his co-worker accidentally dropped it on his left foot. He was immediately given first aid and thereafter sent to a hospital in Tarragona, Spain. The x-ray examination on his injured foot showed that one of his metatarsal bones was fractured. On November 19, 2010, as his injury prevented him from performing his duties on board, he was repatriated and immediately referred to the Metropolitan Medical Center where he was diagnosed to have sustained "non-displaced Fracture of the Cuneiform Bone, Left Foot."
Quiogue underwent treatment and therapy with the company-designated physician from November 2010 to April 2011. On April 13, 2011, he was certified as "fit to work" by the company-designated physician. Notwithstanding the treatment procedures, Quiogue continued to feel pain and discomfort. Consequently, he sought a second opinion from Dr. Nicanor Escutin (Dr. Escutin), an orthopedic surgeon. After a battery of tests, the latter concluded that the extent of his injury rendered him permanently and totally incapable to perform his work as a seafarer. The medical certificate issued by Dr. Escutin reads:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrary
"FINAL DIAGNOSIS:LawlibraryofCRAlawQuiogue sought compensation based on total permanent disability from petitioners, but the latter refused, insisting that he was not entitled to total permanent disability benefits because he was declared as fit to work by the company-designated physician. This prompted Quiogue to file a complaint before the NLRC.
- FRACTURE, CUNEIFORM, LEFT FOOT
- TRAUMATIC ARTHRITIS, LEFT FOOT
He is given a PERMANENT DISABILITY. He is UNFIT FOR SEADUTY in whatever capacity as a SEAMAN."3
WHEREFORE, premises considered, judgment is hereby rendered ordering respondents, jointly and severally, to pay complainant the amount of USD89,000.00 representing his permanent and total disability benefit in accordance with the existing CBA and 10% of this total award as attorney's fees.On appeal, the NLRC affirmed in toto the above decision and later denied petitioners' motion for reconsideration.6 According to the NLRC, a seafarer was not precluded from engaging the services of the physician of his own choice as it was clear from Section 20 B (3)7 of the POEA-SEC. In work-related injury or illness during the term of the contract of a seafarer, the concerned seafarer was required to have himself examined by the company-designated physician for purposes of confirmatory medical evaluation to determine the gravity of the illness and injuries. Nonetheless, the NLRC stated that it was the competence of the attending physician, not the designation, which determined the true health status of the patient-seafarer and what was needed for the purpose of the grant of compensation. In situations where the certification of the company-designated physician would clash with the findings of the doctors of the seafarer, it would be the findings favorable to the complainant that must be adopted. Moreover, from the time that Quiogue had been injured until the time that he was allegedly certified to be fit to work by the company-designated physician on April 13, 2011, more or less five (5) months had already transpired. His disability was already considered permanent and total in accordance with the ruling in Oriental Shipmanagement Co., Inc. v. Bastol.8redarclaw
Other claims are hereby denied for want of sufficient evidence hereof.
SO ORDERED.5
WHEREFORE, premises considered, the petition is PARTLY GRANTED. The judgment of the NLRC in LAC NO. 01-000014-12 sustaining the decision of the Labor Arbiter is AFFIRMED with MODIFICATION in that the award of attorney's fees is hereby DELETED for lack of sufficient factual and legal basis.After their motion for reconsideration was denied, petitioners filed this petition for review, presenting the following:LawlibraryofCRAlaw
SO ORDERED.10
In his Comment,12 Quiogue countered that his previous receipt of disability compensation from his former employer was irrelevant to his present claim for permanent disability benefits against petitioners. He argued that the two claims for total and permanent disability came from different employment contracts which were years apart and not simultaneous. Also, the injuries were different and it was plain bad luck that he was injured in both employment contracts. He posited that under the POEA-SEC, the seafarer may object to the company-designated physician's assessment by securing a second opinion from a doctor of his choice. Thus, the company-designated physician's declaration of fitness, despite recurring pains in his left injured foot, could not be considered as absolute determination of his health condition. Dr. Escutin's assessment of permanent total disability as he was already incapable to perform his work as seaman due to his injury deserved full credence.ARGUMENTS
1] Quiogue had previously filed a claim for total and permanent disability benefits for which he was found to be suffering from permanent disability.
2] The fact that Quiogue was awarded permanent total disability benefits in the amount of US$150,000.00 plus attorney's fees of US$15,000.00 in 2007 must bar the claim for disability benefits against petitioners.
3] Dr. Escutin's disability report cannot prevail over the company-designated physician's findings, absent any showing that the declaration of fitness to work was tainted with fraud or irregularity. The ruling in Vergara v. Hammonia Maritime Services, Inc.,11 shows that more weight should be given to the assessment made by company doctors because they were the ones who attended and treated the seafarer throughout his illness than to the findings by those who had merely examined him upon recovery and only for the purpose of determining the degree of disability. While the seafarer is entitled to seek second or third opinion from his private doctors, this does not automatically set aside the findings of the company-designated physician.
4] It is of no moment that petitioners never objected to Quiogue's pre-employment medical examination (PEME), declaring him fit to work. A PEME is not exploratory in nature. It is not indicative of a seafarer's complete and whole medical condition.
5] The award of total and permanent disability benefits to Quiogue would have the effect of establishing a dangerous precedent.
6] Quiogue is not entitled to permanent and total disability benefits on the pretext that his medical treatment lasted for more than 120 days or he was unable to return to seafaring duties for the same period.
In Quitoriano v. Jebsens Maritime, Inc. (624 Phil. 523 [2010]), the High Court held that:LawlibraryofCRAlaw
ChanRoblesVirtualawlibraryThus, Court has applied the Labor Code concept of permanent total disability to the case of seafarers, xxxIn Quitoriano, the Supreme Court held that the disability of petitioner therein is considered permanent and total by reason of the fact that it was only after more than five months from the time petitioner therein was medically repatriated that the "fit to work" certification was issued by the company-designated physician. This ruling finds application in the present case. Herein private respondent had medical treatment and physical therapy under the company designated physician from the time he was repatriated on November 19, 2010 but it was only on April 13, 2011 or after a period of 145 days that the company physician declared him fit to work. Hence, similar with the pronouncement in Quitoriano, the disability of herein private respondent should be considered permanent and total since the "fit to work" certification was issued by the company physician only on April 13, 2011 or more than 120 days after he was repatriated in the Philippines on November 19, 2010.14
xxxx
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:LawlibraryofCRAlaw
ChanRoblesVirtualawlibrarySec. 2. Disability, xxxIn Vicente v. ECC (G.R. No. 85024, January 23, 1991, 193 SCRA 190, 195):
(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.
xxxxxxx the test of whether or not an employee suffers from 'permanent total disability' is a showing of the capacity of the employee to continue performing his work notwithstanding the disability he incurred. Thus, if by reason of the injury or sickness he sustained, the employee is unable to perform his customary job for more than 120 days and he does not come within the coverage of Rule X of the Amended Rules on Employees Compensability (which, in more detailed manner, describes what constitutes temporary total disability), then the said employee undoubtedly suffers from 'permanent total disability' regardless of whether or not he loses the use of any part of his body.
xxxx
ART. 192. Permanent Total Disability, xxxOn the other hand, the rule referred to - Rule X, Section 2 of the Amended Rules on Employees' Compensation, which implemented Book IV of the Labor Code (IRR) - states:LawlibraryofCRAlaw
(c) The following disabilities shall be deemed total and permanent:LawlibraryofCRAlaw
(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules;
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 anytime 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 120-day rule under the Labor Code on permanent and total disability of seafarers was initially discussed in Crystal Shipping, Inc. v. Natividad15 (Crystal Shipping). It was stated therein that "permanent disability is 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. As gleaned from the records, respondent was unable to work from August 18, 1998 to February 22, 1999, at the least, or more than 120 days, due to his medical treatment. This clearly shows that his disability was permanent."16redarclaw
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 up 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 also be declared fit to work at any time if such declaration is justified by his medical condition.20redarclawThus, in Vergara, the Court clarified that even though the 120-day period for medical evaluation was exceeded, the seafarers could not automatically claim permanent and total disability because it was possible to extend the evaluation or treatment period to 240 days.[Emphasis and Underscoring Supplied]
It is the doctor's findings that should prevail as he/she is equipped with the proper discernment, knowledge, experience and expertise on what constitutes total or partial disability. His declaration serves as the basis for the degree of disability that can range anywhere from Grade 1 to Grade 14. Notably, this is a serious consideration that cannot be determined by simply counting the number of treatment lapsed days.Medical treatment exceeded 120 days but not 240 days; Seafarers entitled to total disability benefits
In light of these distinctions, to confuse the concepts of permanent and total disability is to trigger a situation where disability would be determined by simply counting the duration of the seafarer's illness. This system would inevitably induce the unscrupulous to delay treatment for more than one hundred twenty (120) days to avail of the more favorable award of permanent total disability benefits.31
xxx From the time of Caseñas' diagnosis by the company-designated physician, he was under the state of temporary total disability, which lasted for at least 120 days as provided by law. Such period could be extended up to 240 days, if further medical attention was required.In Krestel Shipping Co., Inc. v. Munar (Krestel),34 the Court clarified that under Section 32 of the POEA-SEC, only those injuries or disabilities that were classified as Grade 1 might 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 was, under legal contemplation, totally and permanently disabled.
There was, however, no showing of any justification to extend said period. As the law requires, within 120 days from the time he was diagnosed of his illness, the company-designated physician must make a declaration as to the fitness or unfitness of Caseñas. As correctly observed by the CA, however, the 120 day period lapsed without such a declaration being made. Caseñas is now deemed to be in a state of permanent total disability and, thus, clearly entitled to the total disability benefits provided by law.33
The company-designated physician failed to give a definitive impediment rating of Carcedo's disability beyond the extended temporary disability period, after the 120-day period but less than 240 days. By operation of law, therefore, Carcedo's total and temporary disability lapsed into a total and permanent disability.36redarclawHarmonizing the decisions[Emphasis Supplied]
Certainly, the company-designated physician must perform some significant act before he can invoke the exceptional 240-day period under the IRR. It is only fitting that the company-designated physician must provide a sufficient justification to extend the original 120-day period. Otherwise, under the law, the seafarer must be granted the relief of permanent and total disability benefits due to such non-compliance.
(a) The company-designated physician failed to issue a declaration as to his fitness to engage in sea duty or disability even after the lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability, hence, justify an extension of the period to 240 days; (b) 240 days had lapsed without any certification being issued by the company-designated physician; xxxx
Permanent disability is 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.To recapitulate/from the time Quiogue was medically repatriated on November 19, 2010, he was unable to work for more than 120 days. The company-designated physician was silent on a need to extend the period of diagnosis and treatment to 240 days. Hence, it is the 120-day period under Article 192 (c) (1) of the Labor Code that shall apply in the present case.
Total disability, on the other hand, means 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.
A total disability does not require that the employee be completely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue his or her usual work and earn from it. A total disability is considered permanent if it lasts continuously for more than 120 days.41
The possibility that petitioner could work as a drummer at sea again does not negate the claim for permanent total disability benefits. In the same case of Crystal Shipping, Inc., we held:LawlibraryofCRAlawConsidering that Quiogue had not been able to resume his work for more than 120 days and that his disability did not fall within the exception provided for by the Rules, the CA cannot be faulted for sustaining the award of permanent disability benefits.
ChanRoblesVirtualawlibraryPetitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001. Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years. The law does not require that the illness should be incurable. What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability.[Emphasis Supplied]
Endnotes:
* Designated Acting Member in lieu of Associate Justice Mariano C. Del Castillo, per Special Order No. 2115, dated July 22, 2015.
1Rollo, pp. 73-82. Penned by Associate Justice Priscilla J. Baltazar-Padilla, with Associate Justices Apolinario D. Bruselas, Jr. and Agnes Reyes-Carpio, concurring.
2 Id. at 105-106.
3 As quoted in the CA decision, id. at 74.
4 Id. at 108-110.
5 Id.
6 Id. at 112-123.
7 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. 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.
8 636 Phil. 358 (2010).
9Rollo, p. 80.
10 Id. at 81-82.
11 588 Phil. 895 (2008).
12Rollo, pp. 131-153.
13 Id. at 158-173.
14Rollo, p. 78-80.
15 510 Phil. 332 (2005).
16 Id. at 340.
17 See Micronesia Resources v. Cantomayor, 522 Phil. 130 (2007) and Wallem Maritime Services, Inc. v. NLRC, 588 Phil. 27 (2008).
18 Supra note 11.
19 Sec. 20 - 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.
20 Supra note 11, at 912.
21 G.R. No. 181180, August 15, 2012, 678 SCRA 503.
22 Id. at 519.
23 G.R. No. 177578, January 25, 2012, 664 SCRA 134.
24GSIS v. CA, 349 Phil. 357, 364 (1998).
25 G.R. No. 195168, November 12, 2012, 685 SCRA 225.
26 G.R. No. 191903, June 19, 2013, 699 SCRA 197.
27 G.R. No. 203472, July 9, 2014, 729 SCRA 631.
28 G.R. No. 204233, September 3, 2014, 734 SCRA 315.
29 Id. at 332.
30 G.R. No. 195832, October 1, 2014, 737 SCRA 438.
31 Id. at 449.
32 G.R. No. 197303, June 4, 2014, 725 SCRA 108.
33 Id. at 128.
34 G.R. No. 198501, January 30, 2013, 689 SCRA 795, 809.
35 G.R. No. 203804, April 15, 2015.
36 Id.
37 G.R. No. 193679, July 18, 2012, 677 SCRA 296, 315.
38 Supra note 30, at 449.
39 Supra note 35.
40Maersk Filipinos Crewing Inc. v. Mesina, G.R. No. 200837, June 5, 2013, 697 SCRA 601, 616.
41 Id. at 619, citing Fil-Star Maritime Corporation v. Rosete, G.R. No. 192686, November 23, 2011, 677 SCRA 262.
42 See United Philippine Lines, Inc. v. Beseril, 521 Phil. 380 (2006).
43 G.R. No. 203804, April 15, 2015, citing Kestrel Shipping Co., Inc. v. Munar, G.R. No. 198501, January 30, 2013, 689 SCRA 795, 810.
44 552 Phil. 130, 145 (2007).
45Delos Santos v. Jebsen Maritime, Inc., 512 Phil. 301, 315-316 (2005).