G.R. No. 230481, July 26, 2017
HOEGH FLEET SERVICES PHILS., INC., AND/OR HOEGH FLEET SERVICES AS, Petitioners, v. BERNARDO M. TURALLO, Respondent.
G.R. No. 230500
BERNARDO M. TURALLO, Petitioner, v. HOEGH FLEET SERVICES PHILS., INC., AND/OR HOEGH FLEET SERVICES AS, Respondents.
R E S O L U T I O N
VELASCO, JR., J.:
These are consolidated Petitions for Review on Certiorari under Rule 45 of the Rules of Court, which seek to reverse and set aside the Decision1 dated November 8, 2016 of the Court of Appeals (CA) and its Resolution2 dated March 8, 2017 in CA-G.R. SP No. 142979. There, Hoegh Fleet Services Phils., Inc. and/or Hoegh Fleet Services AS (hereinafter referred to as Hoegh Fleet) was ordered to pay Turallo US$90,000.00, US$3,084.54 and US$1,000.00 as disability compensation, sickness allowance and attorney's fees, respectively.3
The facts, as found by the CA, are as follows:
On 9 November 2012, petitioners hired Turallo as a Messman on board vessel "Hoegh Tokyo" for nine (9) months. The employment contract was signed on 27 December 2012, which was also covered by a Collective Bargaining Agreement between the Associated Marine Officers' and Seaman's Union of the Philippines and Hoegh Fleet Services AS, represented by Hoegh Fleet Services Phils., Inc.
Turallo was found "fit for sea duty" in the Pre-Employment Medical Examination (PEME).
On 2 January 2013, Turallo boarded the vessel.
Sometime in September 2013 while on board the vessel, Turallo felt pain on the upper back of his body and chest pain, which was reported to his superiors on 23 September 2013, as evidenced by the "Incident/Accidents Personnel" signed by Turallo's department head and the master of the vessel. On 24 September 2013, Turallo was referred to a doctor by the ship's captain. Said referral also mentioned that Turallo was discharged from the ship on 23 September 2013.
Upon arrival in Manila, Turallo was referred to the company-designated physician, who in turn referred him to an orthopedic surgeon and cardiologist. He underwent medical and laboratory tests and was advised to return on 27 September 2013 for re-evaluation.
On 27 September 2013, Turallo underwent MRI of the cervical spine and left shoulder and EMG-NCV on 30 September 2013.
On 4 October 2013, after the said tests, the company-designated physician diagnosed Turallo with "Acromioclavicular Joint Arthritis; Bicep Tear and Cuff Tear, Left Shoulder; Cervical Spondylosis Secondary to C4-C5, C5-C6; Disc Protrusion; Rule Out Ischemic Heart Disease" and recommended that he undergo the following procedures: "Dobutamine Stress Echocardiogram Arthroscopic Surgery, Acromioclavicular Joint Debridgment, Subacrominal Decompression Cuff Repair using Double Row 3-4 anchors, Biceps Tenodesis using 1-2 anchors".
In a "private and confidential" correspondence dated 23 December 2013 to Capt. Desabille, head of the crew operations, the company-designated physician reported that Turallo had undergone a C4-C5, C5-C6 Discectomy Fusion with PEEK Prevail on 19 December 2013, and that the specialist opined that the estimated length of treatment after surgery is three (3) months of rehabilitation for strengthening and mobilization exercise. The letter further stated that based on Turallo's condition at that time, if the latter is entitled to disability, the closest interim assessments are Grade 8 (shoulder)-ankylosis of one shoulder and Grade 10 (neck)-moderate stiffness or 2/3 loss of motion in neck.
In another correspondence of same date addressed to Capt. Desabille, the company-designated physician noted Turallo's condition and stated the treatment and processes that the latter has undergone and further noted that Turallo was in stable condition, he was advised to continue physical therapy on out-patient basis and was prescribed seven (7) different take home medications.
On 10 January 2014, the company-designated physician certified that Turallo was undergoing medical/surgical treatment from 25 September 2013 up to the said date.
Despite Turallo's continuous rehabilitation treatment, pain in his left shoulder persisted, hence, he followed up his pending surgery therefor several times to no avail. This prompted Turallo to seek a second opinion.
On 13 May 2014, Turallo consulted with Dr. Manuel Fidel Magtira, a government physician of the Vizcarra Diagnostic Center who, after x-ray of his left wrist and shoulder joints, found him to be "partially and permanently disabled with separate impediments for the different affected parts of (his) body of Grade 8, Grade 10 and Grade 11, based on the POEA contract" but declared him as "permanently unfit in any capacity for further sea duties".
On 23 May and 2 June 2014, grievance proceedings were held between the parties at the AMOSUP, where the petitioners offered the amount of Thirty Thousand Two Hundred Thirty One US Dollars (US$30,231.00) corresponding to .a Grade 8 disability compensation based on the maximum amount of Ninety Thousand US Dollars (US$90,000.00). Turallo, however proposed the settlement amount of Sixty Thousand US Dollars (US$60,000.00). The parties failed to reach an agreement.
Turallo then filed a Notice to Arbitrate with the National Conciliation and Mediation Board. At this point, petitioners increased their offer from Thirty Thousand Two Hundred Thirty One US Dollars (US$30,231.00) to Fifty Thousand US Dollars (US$50,000.00) plus allowances for further medical treatments and expenses. Turallo, however still refused to accept such amount.
Despite efforts to arrive at an agreement, the parties failed to settle their differences, hence, they were directed to submit their pleadings and evidence for the resolution of the issues before the panel of arbitrators.
On 27 May 2015, the Panel rendered its assailed Decision, disposing, thus:"WHEREFORE, judgment is hereby rendered ordering [petitioners], jointly and severally, to pay complainant the following amounts:In its 16 September 2015 Resolution, the Panel denied petitioners' motion for reconsideration, thus:
1. Disability compensation in the amount of US$90,000.00, to be paid in the equivalent peso amount at the rate prevailing at the time of payment.
2. Sickness Allowance in the amount of US$3,084.54 to be paid in its peso equivalent as in number 1; and
3. Attorney's fees equivalent to ten percent (10%) of the total monetary award.
Finally, legal interests shall be imposed on the monetary awards herein granted at the rate of 6% per annum from finality of this judgment until fully paid.
SO ORDERED.""WHEREFORE, the Decision and Award dated 27 May 2015 stays.
WHEREFORE, premises considered, the assailed Decision dated 27 May 2015 and Resolution dated 16 September 2015 of the Panel of Voluntary Arbitrators composed of AVA Orlalyn Suarez-Fetesio, AVA Generoso Mamaril and AVA Jaime Montealegre in Case No. AC-949-RCMB-NCR-MVA-075-06-08-2014 are hereby AFFIRMED with MODIFICATION only as to the award of attorney's fees, herein reduced to One Thousand Dollars (US$1,000.00).The Motion for Reconsideration was denied in a Resolution6 dated March 8, 2017. From the CA ruling, Hoegh Fleet and Turallo filed separate petitions for review on certiorari, which were consolidated by the Court through its April 24, 2016 Resolution.7
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.It cannot be any clearer that the company-designated physician's failure to arrive at a definite assessment of the seafarer's fitness to work or permanent disability within the prescribed periods would hold the seafarer's disability total and permanent.
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.11 (emphasis ours)
* Additional Member per raffle dated April 12, 2017.
1Rollo (G.R. No. 230481), pp. 24-33. Penned by Associate Justice Francisco P. Acosta and concurred in by Associate Justices Noel G. Tijam and Eduardo B. Peralta, Jr.
2 Id. at 35-36.
3 Id. at 33.
4 Id. at 24-27.
5 Id. at 33.
6Rollo (G.R. Nos. 230500), p. 176.
7Rollo (G.R. Nos. 230481), p. 75-76.
8 Id. at 14.
9Rollo (G.R. Nos. 230500), p. 23.
10 G.R. No. 198501, January 30, 2013, 689 SCRA 795.
11 Id. at 809-810.
12Co v. Vargas, G.R. No. 195167, November 16, 2011, 660 SCRA 451, 458.
13 G.R. No. 192686, November 23, 2011, 661 SCRA 247.
14 G.R. No. 220608, August 31, 2016.
15Rollo (G.R. Nos. 230500), p. 59.
16Aliling v. Feliciano, G.R. No. 185829, April 25, 2012, 671 SCRA 186, 220.
17Traders Royal Bank Employees Union-Independent v. NLRC, G.R. No. 120592, March 14, 1997, 269 SCRA 733, 751.
18 G.R. No. 118746, September 7, 1995, 248 SCRA 133, 138.
19 G.R. No. 153031, December 14, 2006, 511 SCRA 44, 64-65.
20Rosario, Jr. v. De Guzman, G.R. No. 191247, July 10, 2013, 701 SCRA 78, 85.
21 Article 4, LABOR CODE OF THE PHILIPPINES.