SECOND DIVISION
G.R. No. 220002, August 02, 2017
EUGENIO M. GOMEZ, Petitioner, v. CROSSWORLD MARINE SERVICES, INC., GOLDEN SHIPPING COMPANY S.A., AND ELEAZAR DIAZ, Respondents.
D E C I S I O N
PERALTA, J.:
This is a petition for review on certiorari of the Decision1 of the Court of Appeals2 dated February 5, 2015 and its Resolution3 dated August 7, 2015, declaring petitioner Eugenio M. Gomez to have suffered permanent partial disability with an impediment of Grade 8 and ordering respondents Crossworld Marine Services, Inc., Golden Union Shipping Company, S.A. and Eleazar Diaz jointly and severally liable to pay petitioner Gomez his disability compensation in the amount of US$30,527.26 or its peso equivalent at the exchange rate prevailing at the time of actual payment as well as attorney's fees equivalent to 10% of the said amount due.
The facts are as follows:
On October 12, 2011, Crossworld Marine Services, Inc., in behalf of its principal, Golden Union Shipping Company, hired petitioner Eugenio M. Gomez as an Ordinary Seaman in the vessel M/V Elena VE for a period of 11 months, with a basic monthly compensation of US$583.00. At the time of petitioner's employment, the employees of M/V Elena VE were covered by a special agreement known as ITF UNIFORM "TCC" Collective Agreement between the ship owner and the union.4
Before being hired by respondents, petitioner underwent the required pre-employment medical examination and he was declared fit to work. Petitioner, 42 years old then, joined respondents' vessel on October 30, 2011 in Belgium.5
On February 29, 2012, at about 8:00 a.m., the Chief Officer of the vessel told petitioner to remove the ice from the lower and upper decks of the ship. While performing this task, petitioner accidentally slipped and hit his lower back on the steel deck. Petitioner was immediately in pain, but thought it was just temporary. He rested a moment and then continued to work despite the pain. He reported the incident to his superior when he asked for pain relievers.6
After 15 days or on March 15, 2012, petitioner could no longer bear the pain on his back and went to the vessel's master and requested for medical examination. He was told to go to the hospital the next day.7
Petitioner was examined and treated in Belgium; x-ray was done, intravenous fluid was administered, and medicine was injected twice on his back. He was diagnosed with Lumbago. The doctor-in-charge recommended petitioner's repatriation for further treatment.8 Petitioner was repatriated to the Philippines on March 18, 2012.9
Petitioner arrived in the Philippines on March 19, 2012. The next day, petitioner reported to respondents and requested for further medical examination and treatment.10 Petitioner was referred to the company's accredited doctors at the International Health Aide Diagnostic Services, Inc. (IHADS) for medical evaluation. He underwent six sessions of physical therapy, but the pain in his lumbar area still persisted. On May 11, 2012, IHADS referred petitioner for magnetic resonance imaging (MRI) of his lumbosacral spine at the University Physicians Medical Center. The MRI yielded this result:
IMPRESSION:On June 6, 2012, petitioner was hospitalized at the Medical Center Manila to undergo two surgical procedures: lumbar laminectomy12 and foraminotomy13 to address petitioner's herniated disc, as advised by the company doctor. The Record of Operation14 dated June 7, 2012 showed the preoperative diagnosis: slipped disc, L4-L5, L5-S1. Petitioner was discharged from the hospital on June 13, 2012 with home medication.
Multilevel discogenic and osteophytic central canal and bilateral foraminal stenosis as described, L4-L5 and L5-S1.
Disc dessication, L4-L5 and L5-S111
PRESENT EXAMINATION:Meantime, petitioner went to see another physician, Dr. Renato P. Runas, an orthopedic surgeon, for a second opinion regarding his low back pain. In a Medical Evaluation Report dated September 7, 2012,21 Dr. Runas made this finding:
He still complains of mild low back discomfort although no neurologic deficits noted. Functional capacity testing was done according to his job description which he did not pass due to back pain on certain motions. He should continue flexibility and strength exercises through his physiatrist. Follow up is scheduled on October 11, 2012.
DIAGNOSIS: Status post laminectomy L4L5-L5S1 and foraminotomy L4L5-L4S1. Ongoing physiotherapy.
DISPOSITION: Prognosis is fair to good. His symptoms at present are subjective. If he will pass the functional capacity testing after adequate flexibility is attained, he can resume work at sea.
This is seen in 2 to 3 more months. Interim disability assessment is unchanged at Grade 8 based on the POEA Contract Schedule of Impediments.20 (Emphasis supplied.)
x x x xPetitioner asked respondents for payment of his disability benefits, but respondents refused. Efforts toward an amicable settlement was unsuccessful. Hence, on September 13, 2012, petitioner filed a complaint22 before the Labor Arbiter, praying that his disability be declared as work-related, total and permanent, and that respondents be declared solidarity liable to pay him permanent total disability benefit, moral and exemplary damages and attorney's fees.
At present, Seaman Gomez is still incapacitated due to pain on the lower back with numbness of the left lower extremity. Lower back pain is triggered by exertion. He cannot tolerate prolonged walking and standing because of pain. Forward and backward trunk motion is limited because of pain. He has difficulty standing from a sitting position. x x x
Seaman Gomez is still saddled with persistent and chronic moderate to severe low back pain. The residual pain is secondary to the disc disease and osteoarthritis. This chronic residual low back pain proved to be refractory to medications and physiotherapy management. He is unable to carry and lift heavy objects due to stiffness and pain. It is also difficult for him to bend, pick up and carry objects from the floor because of the limitation of trunk motion. The surgery has lessened the intensity of pain but he did not regain his physical capacity to work. As an Ordinary Seaman, he does strenuous and heavy jobs which are no longer possible after the surgery. He needs complete activity modification to avoid further damage to the spine. He is unfit for sea duty in whatever capacity with a permanent disability since he can no longer perform his work which he is previously engaged in. (Emphasis supplied)
WHEREFORE, a Decision is hereby rendered ordering Respondents Crossworld Marine Services, Inc. and Golden Union Shipping Company, S.A. to jointly and severally pay complainant Eugenio M. Gomez permanent disability benefit Grade 1, in the amount of US$156,816 or its peso equivalent at the exchange rate prevailing at the time of actual payment plus 10% thereof as and by way of attorney's fees.26Respondents appealed the Decision of the Labor Arbiter to the National Labor Relations Commission (NLRC).
WHEREFORE, premises considered, the appeal of the respondents is DENIED for lack of merit and the Labor Arbiter's Decision is hereby AFFIRMED in its entirety.29The NLRC denied respondents' motion for reconsideration in a Resolution30 dated June 20, 2013.
x x x We reiterate that although Dr. Tay made no definitive findings as to the fitness of Gomez to resume his duties as Ordinary Seaman, she noted that the latter could not yet resume his work because he failed the functional capacity test; and that his disability with an impediment of Grade 8 shall continue up to three months. On the other, hand, while Dr. Tay's findings were vague and inconclusive, Dr. Runas was explicit in declaring that Gomez' injury is permanent because the same is resistant to physical therapy and treatment. Consistent with the findings of the company-designated physician, Dr. Runas observed that Gomez' low back pain is triggered by exertion, thus, limiting his forward and backward trunk motion. Dr. Runas opined that regardless of continuous medical intervention, Gomez could no longer perform strenuous and heavy work, making him "unfit for sea duty in whatever capacity x x x."34As between Dr. Runas' express declaration that petitioner is suffering from permanent disability and Dr. Tay's more positive assessment, the Court of Appeals gave merit to Dr. Runas' assessment that petitioner is suffering from permanent disability thus:
As between Dr. Runas' express declaration that Gomez is suffering from permanent disability and Dr. Tay's more positive assessment, We give merit to the former's findings. In Abante v. KJGS Fleet Management Manila, et al., the Supreme Court recognized the propensity of the company-designated physicians, who are employed by the shipowner or the manning agency, to be more hopeful in their evaluation than that of a physician of the seafarer's choice. If We uphold the more positive outlook of the company-designated physician, the seaman would inevitably be denied of his right to disability compensation under Our labor laws and the parties' agreement. We should be cognizant of the social justice principle upon which Our labor laws are founded - that when there is doubt, the same should be resolved in favor of the working man x x x.35However, the Court of Appeals stated that the issue of whether or not the injury of petitioner is total or partial is another matter as the NLRC failed to state the factual basis in declaring petitioner totally disabled. The findings of Dr. Runas was silent with respect to the disability grade of petitioner. It noted that petitioner's injury is not among those listed under Section 32 of the POEA SEC with Grade 1 impediment, which is considered as total disability.36
WHEREFORE, the instant Petition for Certiorari is PARTIALLY GRANTED. The Decision dated April 11, 2013 and Resolution dated June 30, 2013 of the National Labor Relations Commission, Fourth.Division (Formerly Seventh Division), rendered in NLRC LAC No. OFW (M) 01-000126-13, NLRC NCR Case No. 09-13737-11, are hereby MODIFIED as follows:
- Declaring Eugenio M. Gomez to have suffered permanent partial disability with an impediment of Grade 8;
- Ordering the petitioners Crossworld Marine Services, Inc., Golden Union Shipping Company, S.A. and Eleazar Diaz jointly and severally liable to pay Gomez his disability compensation in the amount of US$30,527.26 or its peso equivalent at the exchange rate prevailing at the time of actual payment as well as attorney's fees equivalent to 10% of the said amount due.44
Article 192. Permanent total disability. — x x xThe rule referred to by Article 192 (c) (1) of the Labor Code is Rule X, Section 2 of the Rules and Regulations Implementing Book IV of the Labor Code, which states:
x x x x
(c) The following disabilities shall be deemed total and permanent:
(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules;
x x x
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. (Emphasis supplied.)Forming an integral part of petitioner's contract of employment49 is the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships contained in POEA Memorandum Circular No. 10, Series of 2010, Section 20 of which states:
SECTION 20. COMPENSATION AND BENEFITSVergara v. Hammonia Maritime Services, Inc.,50 explained:
A. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS
The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows:
- The employer shall continue to pay the seafarer his wages during the time he is on board the ship;
- If the injury or illness requires medical x x x treatment in a foreign port, the employer shall be liable for the full cost of such medical, x x x surgical and hospital treatment x x x 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.
- In addition to the above obligation of the employer to provide medical attention, the seafarer shall also 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. Payment of the sickness allowance shall be made on a regular basis, but not less than once a month.
x x x x
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 x x x. In the course of the treatment, the seafarer shall also report regularly to the company-designated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer. 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.
x x x x
- In case of permanent total or partial disability of the seafarer caused by either injury or illness, the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of his Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted.
The disability shall be based solely on the disability gradings provided under Section 32 of this Contract, and shall not be measured or determined by the number of days a seafarer is under treatment or the number of days in which sickness allowance is paid.- It is understood and agreed that the benefits mentioned above shall be separate and distinct from, and will be in addition to whatever benefits which the seafarer is entitled to under Philippine laws, such as from the Social Security System, Overseas Workers Welfare Administration, Employee's Compensation Commission, Philippine Health Insurance Corporation and Home Development Mutual Fund (Pag-ibig Fund).
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 such declaration is justified by his medical condition.51A temporary total disability only becomes permanent when so declared by the company-designated physician within the periods he/she is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability.52
This Court's pronouncements in Vergara presented a restraint against the indiscriminate reliance on Crystal Shipping such that a seafarer is immediately catapulted into filing a complaint for total and permanent disability benefits after the expiration of 120 days from the time he signed-off from the vessel to which he was assigned. Particularly, a seafarer's inability to work and the failure of the company-designated physician to determine fitness or unfitness to work despite the lapse of 120 days will not automatically bring about a shift in the seafarer's state from total and temporary to total and permanent, considering that the condition of total and temporary disability may be extended up to a maximum of 240 days.63The Court of Appeals correctly found that the CBA that covers petitioner's employment is the ITF Uniform "TCC" Collective Agreement, which was admitted by respondents, agreed to by the Labor Arbiter and the NLRC, but the Labor Arbiter and the NLRC erroneously used the rate of compensation of the ITF Standard Collective Agreement, which is a different agreement. Hence, the Court of Appeals correctly computed petitioner's disability benefit under the ITF Uniform TCC Collective Bargaining Agreement as follows:
Disability compensation = 33.59% (Grade 8 disability) x US$90,882The Court of Appeals correctly awarded attorney's fees in favor or petitioner. Under Article 2208, paragraph 8 of the Civil Code, attorney's fees can be recovered in actions for indemnity under workmen's compensation and employer's liability laws.64
= US$30,527.26
Endnotes:
1Rollo, pp. 8-20.
2 Penned by Associate Justice Zenaida T. Galapate-Laguilles, with Associate Justices Elihu A. Ybanez and Florito S. Macalino, concurring.
3Id. at 22-24.
4 CA Decision, rollo, p. 9; Respondents' Position Paper, rollo, p. 140.
5 Complainant's Position Paper, rollo, p. 89; records, p. 11.
6Id.
7Id. at 90.
8 Records, "Annex "C," p. 45.
9 Complainant's Position Paper, rollo, p. 90.
10 Id.
11Rollo, Annex "F," p. 112.
12 A laminectomy is a surgical removal of the posterior arch of a vertebra. (Webster's Third New International Dictionary, 1993 edition.)
13 It is a minimally invasive surgical procedure performed to expand the opening of the spinal column where the nerve roots exit the spinal canal. Its purpose is to relieve the pressure resulting from foraminal stenosis. This is a painful condition caused by a narrowing of the foramen, the opening within each of the spinal bone that allows nerve roots to pass through. Herniated discs and thickened ligaments and joints may also be the cause of the narrowing of the foramen. (As defined in the CA Decision taken from www.orthospineinst.com, rollo, p. 10.)
14 Records, Annex "G," p. 134.
15 Records, Annex "I," p. 136.
16Rollo, Annex "H," p. 534.
17Supra note 15.
18 Records, Annex "H," p. 52.
19 Complainant's Position Paper, rollo, p. 92.
20 CA rollo, Annex "M," p. 117.
21 Records, Annex "I," p. 152.
22 Docketed as NLRC-NCR-OFW-CASE No. (M) 09-13737-12.
23 Records, p. 82.
24Rollo, pp. 233-244.
25 510 Phil. 332, 340 (2005).
26Rollo, p. 244.
27Id. at 285-296.
28 Citing Philippine Transmarine Carriers v. National Labor Relations Commission, 405 Phil. 487, 494(2001).
29Rollo, p. 295.
30Id. at 308-311.
31Id. at 13.
32Id. at 15.
33Id. at 16.
34Id. at 16-17.
35Id. at 17-18.
36Id. at 18.
37 Citing Kestrel Shipping Company, Inc. v. Munar, 702 Phil. 717, 733 (2013), which cited Vergara v. Hammonia Maritime Services, Inc., 588 Phil. 895, 912 (2008).
38Rollo, pp. 18-19.
39Id. at 19.
40Id.
41 The complete title of the agreement is "ITF Uniform "TCC" Collective Agreement," Annex "B," Records, p. 100.
42 The complete title of the agreement is "ITF Standard Collective Agreement," Annex "J," rollo p. 118.
43Rollo, p. 19.
44Id. at 20.
45Id. at 44.
46C.F. Sharp Crew Management, Inc. v. Tao, 691 Phil. 521, 533 (2012).
47 Under Chapter VI on Disability Benefits.
48Vergara v. Hammonia Maritime Services, Inc., supra note 37, at 911.
49 Records, p. 5.
50Supra note 37.
51Vergara v. Hammonia, Maritime Services, Inc., id. at 912.
52Id. at 913.
53Millan v. Wallem Maritime Services, Inc., et al., 698 Phil. 437, 445 (2012).
54Pacific Ocean Manning, Inc. v. Penales, 694 Phil. 239, 252 (2012).
55Rollo, Annex "J," p. 196.
56Figuera v. Ang, G.R. No. 204264, June 29, 2016.
57Id.
58 Records, p. 131.
59 713 Phil. 487, 497 (2013).
60Supra note 37.
61Supra note 25, at 340.
62Vergara v. Hammonia Maritime Services, Inc., supra note 37, at 913.
63Kestrel Shipping Company, Inc. v. Munar, supra note 37, at 738.
64Esquerra v. United Philippines Lines, Inc., supra note 59, at 501.
65 716 Phil. 267 (2013).
66Acomarit Phils. v. Dotimas, G.R. No. 90984, August 19, 2015, 767 SCRA 490, 507.