SECOND DIVISION
G.R. No. 215313, October 21, 2015
OLIMPIO O. OLIDANA, Petitioner, v. JEBSENS MARITIME, INC., 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 September 3, 2014 Decision1 and the November 10, 2014 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 130988, which modified the May 28, 2013 Award3 of the Panel of Voluntary Arbitrators (VA), involving a claim for permanent and total disability benefits by a seafarer.
The Facts
Petitioner Olimpio O. Olidana (Olidana) was employed by respondents Jebsens Maritime, Inc. (Jebsens) as chief cook since 2007 under different employment contracts. As chief cook, Olidana was tasked to provision the ship, prepare its meals, take care and control of the refrigerated stores, clean the gallery, and maintain an inventory of catering and provisions.
Employee's Position
On March 22, 2011, Olidana again entered into an employment contract with Jebsens as chief cook of M/V Seoul Express for a duration of six (6) months. M/V Seoul Express was covered by the GIS Fleet Agreement Collective Bargaining Agreement (CBA) between the ITF London, Vereinte Dienstlestlungsgewerkschaft and Hapag Lloyd AG, represented by Jebsens.
According to Olidana, sometime in September 2011, while he was cooking in the ship's kitchen, he accidentally bumped a kettle full of hot water injuring his left hand. He reported the matter to the vessel's master, who simply advised him to buy an ointment.
On October 8, 2011, while the vessel was docked at Ensanada, British Columbia, Olidana's medical condition manifested when he felt an acute pain and swelling on his left hand. He was brought to the clinic for a check up. There, he was diagnosed to be suffering from Tendinitis on his left hand, but he was allowed to go back to duty. His condition, however, worsened as his left hand became swollen with numbness of the fingers.
When the vessel docked at Yokohama, Japan, Olidana was brought to the nearest hospital for treatment where abscess of the left palm with infection of the whole hand was noted. Incision and drainage of abscess under local anesthesia was done at the emergency room. He was then admitted to the hospital. He was discharged after a week and then repatriated to the Philippines on November 18, 2011.
Within three (3) working days from his arrival, Olidana reported to Jebsens and he was immediately referred to Shiphealth, Inc. for medical treatment. Olidana was placed under the care of Dr. Anna Pamella Lagrosa-Elbo (Dr. Elbo) and Dr. Maria Gracia K. Gutay (Dr. Gutay), the company-designated physicians.
On March 27, 2012, the company-designated physicians issued two separate reports. One report, titled "DISABILITY GRADING"4 (disability report), stated that:chanRoblesvirtualLawlibrary
Mr. Olidana is a diagnosed case of Central Space Abscess, Palmar Aspect of Left Hand s/p Incision and Drainage (October 27, 2011, Japan) s/p 30 session of Physical Therapy.Conversely, the other report, titled "11th and FINAL SUMMARY MEDICAL REPORT"5 (final medical report), recapped Olidana's medical history, the clinical course undertaken, and provided the following diagnosis and recommendations:chanRoblesvirtualLawlibrary
Based on POEA Contract of the HANDS, Section 32 No. 4, the closest classification that answers the condition of Mr. Olimpio Olidana is Loss of grasping power for small objects between the fold of the finger of one hand which is a GRADE 10.ChanRoblesVirtualawlibrary
Diagnosis:Olidana asked Jebsens for his disability benefits, but the latter only offered him US $10,000.00 based on the POEA Standard Employment Contract (POEA-SEC).
• Central Space Abscess, Palmar Aspect of Left Hand s/p Incision and Drainage (October 27, 2011, Japan)
• s/p 12 sessions of Physical Therapy
• s/p 10 sessions of Physical Therapy
• s/p 8 sessions of Physical Therapy
Recommendations:
• NOT FIT FOR DUTY
• CASE CLOSURE
Seaman Olidana has a permanent disability affecting his left hand. The tendons of the affected 3 fingers are damaged by the massive palmar infection. Tendons are easily damaged and necrosed when surrounded by pus. Thus, the resulting flexion deformity of the fingers. Extended physiotherapy will not improve the finger movements. Scars and fibrous tissue also limit movements. The left hand function is totally lost. Since he works as Chief Cook he needs his hand in holding [food] and utensils during food preparations. With this impediment now affecting him, he is no longer expected to perform well in his job as a cook. He is physically unfit to continue with his job as a seaman/cook or in whatever capacity with permanent disability.ChanRoblesVirtualawlibraryThe parties failed to settle their dispute in accordance with the arbitration clause in their CBA. Consequently, Olidana filed a complaint with the VA, docketed as AC-008-NCMB-NCR-97-09-11-12.
WHEREFORE, award is hereby rendered ordering respondent Jebsens Maritime, Inc. and the principals it represent Hapag Lloyd to jointly and severally pay complainant his disability compensation benefit in the amount of US$120,000.00 as provided by the parties existing Collective Bargaining Agreement (CBA) or its peso equivalent at the time of actual payment and ten (10%) percent of the total monetary award as and by way of attorney's fees.Aggrieved, Jebsens filed a petition for review before the CA.
All other claims are dismissed for lack of basis and merit.
SO ORDERED.ChanRoblesVirtualawlibrary
WHEREFORE, the petition is PARTLY GRANTED. The assailed Award of the Panel of Voluntary Arbitrators of the NCMB is MODIFIED such that Jebsens, together with its principal Hapag-Lloyd, shall be jointly and severally liable to pay Olidana disability compensation in the sum of US $24,180.00 or its peso equivalent at the time of actual payment.Olidana filed a motion for reconsideration,9 dated September 18, 2014, arguing that the CA completely disregarded the company-designated physicians' final medical report recommending that he was not fit for duty, and that the final medical report prevailed over the disability report.
IT IS SO ORDERED.8ChanRoblesVirtualawlibrary
In advocacy of his positions, Olidana argues that he is entitled to permanent and total disability benefits; that the meaning of disability does not completely depend on the company-designated physician's declaration but also on what the law says; that permanent disability is the inability of a worker to perform his job for more than 120 days, regardless whether he loses the use of any part of his body; and that considering that both the company-designated physicians and his doctor of choice confirmed that he was already unfit for duty, he is certainly entitled to permanent and total disability benefits.ISSUES I.
WHETHER THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT DID NOT APPLY THE LOSS OF PROFESSION CLAUSE IN THE CBA.II.
WHETHER THE COURT OF APPEALS COMMITTED SERIOUS REVERSIBLE ERROR IN LAW WHEN IT RULED THAT THE PETITIONER IS ONLY ENTITLED TO [US$24,180.00 AS DISABILITY BENEFITS].10ChanRoblesVirtualawlibrary
[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 under Rule X of these Rules.ChanRoblesVirtualawlibraryIn the recent case of Elburg Shipmanagement Phils., Inc. v. Quiogue, Jr.,23 the Court summarized the rules regarding the company-designated physician's duty to issue a final medical assessment on the seafarer's disability grading, as follows:chanRoblesvirtualLawlibrary
1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;cralawlawlibraryHere, Olidana was repatriated on November 18, 2011. Within three (3) days, he was referred to the company-designated physicians. It was only on March 27, 2012, or after a period of 130 days, that the company-designated physicians issued the questionable disability report beyond the 120-day period. Although Section 20 (A) (6) of the 2010 POEA-SEC instructs that disability shall not be measured or determined by the number of days a seafarer is under treatment, equally significant is our pronouncement in Carcedo v. Maine Marine Phils., Inc.,24 that while "[t]he determination of the fitness of a seafarer for sea duty is the province of the company-designated physician, it is still subject to the periods prescribed by law."25cralawred
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;cralawlawlibrary
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.ChanRoblesVirtualawlibrary
xxx Thus, a seafarer may pursue an action for total and permanent disability benefits if: (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; (c) the company-designated physician declared that he is fit for sea duty within the 120-day or 240-day period, as the case may be, but his physician of choice and the doctor chosen under Section 2O-B(3) of the POEA-SEC are of a contrary opinion; (d) the company-designated physician acknowledged that he is partially permanently disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well; (e) the company-designated physician recognized that he is totally and permanently disabled but there is a dispute on the disability grading; (f) the company-designated physician determined that his medical condition is not compensable or work-related under the POEA-SEC but his doctor-of-choice and the third doctor selected under Section 2O-B(3) of the POEA-SEC found otherwise and declared him unfit to work; (g) the company-designated physician declared him totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and (h) the company-designated physician declared him partially and permanently disabled within the 120-day or 240-day period but he remains incapacitated to perform his usual sea duties after the lapse of the said periods.27In the present case, it has been established that, in spite the lapse of the extended 240-day period, Olidana was still incapacitated to perform his sea duties. Due to the injury he sustained, he could no longer perform his usual tasks as chief cook in any vessel. Thus, it resulted to his unemployment until this very day. As correctly held by the VA, this clearly indicate Olidana's permanent disability.(Emphasis Supplied)
Indeed, 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, 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 is, under legal contemplation, totally and permanently disabled. In other words, 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 (AREC) 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 do. 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.In fine, it cannot be said with certainty whether Olidana could resume his seafaring profession in the future. He must accept the inevitable that his distressing injury had practically ruined his career and he must carry its burden for the rest of his life. Nevertheless, at present, it is clear is that Olidana suffered from a permanent total disability resulting in a loss of earning capacity, which should be compensated accordingly.
Moreover, 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.29ChanRoblesVirtualawlibrary
Endnotes:
* Per Special Order No. 2250, dated October 14, 2015.
** Per Special Order No. 2222, dated September 29, 2015.
*** Per Special Order No. 2223, dated September 29, 2015.
1 Penned by Associate Justice Apolinario D. Bruselas, Jr. with Presiding Justice Andres B. Reyes, Jr., and Associate Justice Samuel H. Gaerlan, concurring; rollo, pp. 22-43.
2 Id. at 52-54.
3 Id. at 91-97.
4 Id. at p. 168.
5 Id. at p. 200-202.
6 Id. at 203-204.
7 G.R. No. 193628, March 19, 2014, 719 SCRA 496.
8Rollo, p. 21.
9 Id. at 44-50.
10 Id. at 12.
11 Id. at 275-294.
12 Id. at 350-357.
13Maersk Filipinos Crewing, Inc. v. Mesina, G.R. No. 200837, June 5, 2013, 697 SCRA 601, 619.
14Eyana v. Philippine Transmarine Carriers, Inc., G.R. No. 193468, January 28, 2015.
15 See Magsaysay Maritime Corp. v. Simbajon, G.R. No. 203472, July 9, 2014, 729 SCRA 631, 652-653 where the Court acknowledged the said amendment to the POEA-SEC.
16 G.R. No. 189863, September 17, 2014, 735 SCRA 404.
17 Id. at 417.
18 G.R. No. 203804, April 15, 2015.
19 Id.
20 G.R. No. 211454, February 11, 2015.
21 Id.
22 Supra note 20, citing Kestrel Shipping Co., Inc. v. Munar, G.R. No. 198501, January 30, 2013, 689 SCRA 795.
23 G.R. No. 211882 , July 29, 2015.
24 Supra note 18.
25 Id.
26 G.R. No. 193679, July 18, 2012, 677 SCRA 296.
27 Id. at 315.
28Kestrel Shipping Co., Inc. v. Munar, G.R. No. 198501, January 30, 2013, 689 SCRA 795.
29 Id. at 809.