THIRD DIVISION
G.R. No. 175795, June 22, 2015
NORMILITO R. CAGATIN, Petitioner, v. MAGSAYSAY MARITIME CORPORATION AND C.S.C.S. INTERNATIONAL NV, Respondent.
D E C I S I O N
PERALTA, J.:
FINDINGS:Dr. Cruz diagnosed petitioner as suffering from "small central disc protrusion with annular fissure formation L5S1; disc annular bulge L4L5." Thereafter, petitioner was referred to specialists, while Dr. Cruz continued to see and treat petitioner until January 15, 2002.8
The lumbar lordosis is straightened.
There is a small focal central disc protrusion
at L5-S1 interspace level, associated with an
annular fissure formation.
This indents slightly on the thecal sac.
The disc per se shows decreased 12-signals
indicating dessication.
A small broad annular bulge is also seen at
L4-L5 interspace.
There is no evident intradural lesion.
The conus medullaris and caudal roots are
intact.
The spinal canal, lateral recesses and neural
foramina are not narrowed.
The ligamentum flavum is not hypertrophic.
The rest of the intervertebral discs, vertebral
bodies, posterior elements and facet joints are
normal.
The pre- and paraspinal soft tissues are clear.
IMPRESSION:
Small central disc protrusion, with annular
fissure formation, L5-S1.
Disc annular bulge, L4-L5.
Straightened lumbar lordosis.
No evident untradular abnormality.7cralawlawlibrary
PHYSICAL/NEUROLOGIC EXAMINATIONOn the same date, Dr. Cruz further reported that:chanroblesvirtuallawlibrary
Ambulatory, nicrdauton_ks: intact
Mmt: (B) ue: 5/5
(B) le: 5/5
Sensory: no deficit
Reflexes: #
Straight leg raising test: negative
xxx
RESULTS
NCS
H-reflex studies do not show significant side to side difference and when compared to computed values
EMG
All muscles tested were silent at rest
INTERPRETATION
Present EMG-NCV findings essentially normal.10cralawlawlibrary
The patient has no low back pain and radiculopathy. The range of motion of his trunk is full. He has improved tolerance to prolonged sitting, standing and walking. His lifting capacity has improved to 40 kilos. EMG-NCV is normal. He was advised to continue his physical therapy and occupational therapy.On January 15, 2002, Dr. Cruz declared petitioner as fit to work and executed an affidavit to such effect.12 The medical report of January 15, 2002 stated:chanroblesvirtuallawlibraryDIAGNOSIS:
Small central disc protrusion with annular fissure formation L5S
Disc annular bulge L4L5
He is advised to come back on January 18, 2002.11cralawlawlibrary
The patient has no low back pain and radiculopathy. The range of motion of his trunk is full. He has good tolerance to prolonged sitting, standing and walking. His trunk muscle strength is good. He was evaluated by our orthopedic surgeon and rehabilitation medicine specialist who allowed him to resume his previous activities.Almost seven months later, or on August 6, 2002, petitioner went to another physician, Dr. Enrique Collantes, Jr., for another opinion. Dr. Collantes examined petitioner and, thereafter, made the finding that petitioner was "no longer fit to work at sea" in a vessel, which contradicts the earlier finding of Dr. Cruz. Dr. Collantes gave petitioner a disability grading of 8 (33.59%) for his injury.14DIAGNOSIS:
Small central disc protrusion with annular fissure formation L5S1
Disc annular bulge L4L5
He is fit to work effective today, January 15, 2002.13cralawlawlibrary
Symptoms apparently started since April 15, 2001 after lifting a bed cabin as part of his daily routine, after which, he heard and felt a click at his lower back followed by pain. He had to lie down and rest thereafter, to relieve him of the said pain. He consulted the medical house officer where he was given analgesics that relieved him of his pain temporarily. However, the pain recurred and persisted, this time radiating to his left buttock and thigh up to the lateral part of his left leg and foot. He was referred to an orthopedic surgeon in Venezia, Italy, where he was diagnosed to have a slipped disc at the lumbar spine. He was repatriated to the Philippines on July 28, 2001 and reported at Medical Center Manila under Dr. Nicomedes Cruz for his further evaluation and management. An MR1 was requested and revealed central disc protrusion at L5-S1 level and was referred to the physical therapist. The therapist subjected him to a regimen that lasted from August 1, 2001 to January 2002 and was given a certificate that stated he was "fit to work." The patient objected to this decision and sought my orthopedic opinion on August 6, 2002.And in a Justification of Impediment Grade 8 (33.59%) report of the same date, also prepared by Dr. Collantes, it was also stated, in part:chanroblesvirtuallawlibrary
On physical examination, the patient was ambulatory, with no limp nor abnormal listing. On inspection, there was muscle atrophy at the left gluteal, quadriceps and gastrocnemius muscles. There was weakness, grade 4/5, on flexion and extension of the left hip, knee and ankle. The dorsiflexion of the toe of his left foot was weak. There was no sensory deficit noted. There was tenderness on palpation over the lower lumbar paravertebral muscles with weakness of the abdominal muscles causing him difficulty in lifting his body from a lying position. Straight leg-raising test was (+) at 50 degrees elevation at the left.
DIAGNOSIS: HERNIATED NUCLEUS PULPOSUS, L5-S1, WITH NEUROPATHY
Based on the clinical course and present physical findings, I am recommending a partial permanent disability with POEA Schedule of Disability Grading of Grade 8, 33.59%, that is, moderate rigidity of 2/3 loss of motion or lifting power of the trunk. The period of healing remains undetermined. The patient is now unlit to go back to work at sea at whatever capacity.15cralawlawlibrary
x x x xThus, petitioner filed his Complaint17 before the NLRC claiming for Disability Benefits and damages from respondents.
In persons who continue with symptoms for longer than 1 year, the results of surgical intervention are not as good as relieving leg pain as in patients who undergo surgery within 3 months from the onset of sciatica. There could have occurred an irreversible neurologic damage, intraneural fibrosis, or altered behavioral patterns to the patient. This relates to the irreversible effect of chronic ischemic compression in normal neurophysiology. The more prolonged the pressure in the spinal nerve, the more intense the compression, the less likely is the return to function.
It has been well documented that long standing pain leads to depression. With depression, the patient develops an element of hostility toward pain and his relationship to the sociologic environment, thus, giving poor result after surgery.
Because of such delay, I have explained to the patient its deleterious effect on his life and his future as a seaman. I have advised him to seek permanent modifications in his lifestyle and nature of work. With a concomitant neurologic deficit secondary to a stroke, the patient is declared PERMANENTLY UNFIT TO RETURN TO SEA DUTY IN WHATEVER CAPACITY.16cralawlawlibrary
WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents Magsaysay Maritime Corporation and C.S.C.S. International NV to pay complainant Normilito R. Cagatin the amount of SIXTEEN THOUSAND SEVEN HUNDRED NINETY-FIVE US DOLLARS (US$16,795.00) or its equivalent in Philippine Peso at the prevailing rate of exchange at the time of actual payment representing his disability benefit.The Labor Arbiter found that Dr. Cruz's recommendation that petitioner was "fit to work" was without basis, as petitioner was still experiencing back pain. The arbiter defined "fit to work" as the employee being in the same condition he was in at the time he boarded the vessel. The Labor Arbiter found that such was not the case with petitioner.20
All other claims are DISMISSED for lack of merit.
SO ORDERED.19cralawlawlibrary
WHEREFORE, the assailed decision of 18 June 2003 is REVERSED and SET ASIDE. Accordingly, respondents-appellants are ordered in solidum to pay the complainant-appellee his sickness allowance for one hundred twenty (120) days.The NLRC held that the power and authority to assess and declare a seafarer's disability or report him as fit to work is vested solely on the company-designated physician.23 It added that in order for such an employee to claim disability benefits, he must first be assessed and declared by the company-designated physician as suffering from permanent disability, either total or partial, caused by an injury or illness during his term of employment.24 It held that the findings of the company-designated physician, and not that of the employee's private physician, are those which are accorded respect and judicial weight in the absence of bad faith, malice or fraud.25
SO ORDERED.22cralawlawlibrary
WHEREFORE, the petition is DISMISSED. The Resolutions dated January 29, 2004 and April 28, 2005 of the NLRC in NLRC OFW CN (M) 02-08-2121-00 are AFFIRMED.A motion for reconsideration' filed by petitioner on the above decision was likewise denied for lack of merit.32
SO ORDERED.31cralawlawlibrary
Upon examination, the only issue up for this Court's resolution is: whether or not petitioner is entitled to disability benefits as recommended by his chosen physician, contrary to the finding that he was "fit to work" as earlier reported by his employer's company-designated physician.I.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT GAVE WEIGHT TO THE JANUARY 15, 2002 REPORT OF THE RESPONDENT'S COMPANY-DESIGNATED PHYSICIAN DESPITE ITS MANIFEST PARTIALITY AND (ITS BEING) TAINTED WITH BAD FAITH IN FAVOR OF RESPONDENTS AS IT WAS CONTRARY TO AN EARLIER REPORT OF THE SAME COMPANY-DESIGNATED PHYSICIAN DATED JANUARY 10, 2002. THUS, THE DECISION OF THE HONORABLE COURT OF APPEALS IS NOT IN ACCORD WITH THE LAW AND JURISPRUDENCE.cralawlawlibraryII.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT FAILED TO RECOGNIZE THAT THE ACTUAL CAUSE OF THE INJURIES SUSTAINED BY PETITIONER WAS THE BREACH OF HIS CONTRACT WHEN HE WAS REASSIGNED TO ANOTHER SHIP AND MADE TO WORK NOT IN ACCORDANCE WITH THE TERMS OF HIS CONTRACT.
Section 20. Compensation and BenefitsUnder the above provision, it is the findings and evaluations of the company-designated physician which should form the basis of the seafarer's disability claim.68 It is this physician who is entrusted with the task of assessing a seafarer's disability and there is a procedure to be followed to contest his findings.69 But the assessment of the company-designated physician is not final, binding or conclusive on anyone, including the seafarer, the labor tribunals, or the courts, since the seafarer may seek a second opinion and consult a doctor of his choice regarding his ailment or injury.70 If the physician chosen by the seafarer disagrees with the assessment of the company-designated physician, the company and the seafarer may agree jointly to refer the latter to a third doctor whose decision shall be final and binding on them.
x x x x
B. 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:
1. The employer shall continue to pay the seafarer his wages during 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 repatriate.
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 lit 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 I 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.
Section 15. Transfer Clause. The seafarer agrees to be transferred at any port to any vessel owned or operated, manned or managed by the same employer, provided it is accredited to the same manning agent and provided further that the position of the seafarer and the rate of his wages and terms of service are in no way inferior and the total period of employment shall not exceed that originally agreed upon.
Any form of transfer shall be documented and made available when necessary.
And, secondly, petitioner himself provides no description in the record of what his official and actual designated tasks are as a "Cabin Steward." Therefore, there is simply no basis to his accusation that he was assigned tasks that were "more hazardous" than the job specified in his contract. With no description at all of what the job of Cabin Steward entails, there is simply no point of determining whether the tasks he was actually ordered to do were more hazardous than that of a Cabin Steward. Whenever there is an allegation of breach of contract, the burden of proving such lies on the party who asserts the same.79 In the case at bar, that burden has not been discharged.
As a final note, the Court is wary of the principle that provisions of the POEA-SEC must be applied with liberality in favor of the seafarers, for it is only then that its beneficent provisions can be fully carried into effect.80 However, on several occasions81 when disability claims anchored on such contract were based on flimsy grounds and unfounded allegations, the Court never hesitated to deny the same. Claims for compensation based on surmises cannot be allowed; liberal construction is not a license to disregard the evidence on record or to misapply the laws.82 This Court abides by the principle that justice is in every case for the deserving, to be dispensed with in the light of established facts, the applicable law, and existing jurisprudence.83
WHEREFORE, the petition is DENIED. The assailed July 21, 2006 Decision and the December 5, 2006 Resolution of the Court of Appeals in CA-G.R. SP No. 90529 are hereby AFFIRMED.
SO ORDERED.chanroblesvirtuallawlibrary
Velasco, Jr., (Chairperson), Villarama, Jr., Reyes, and Jardeleza, JJ., concur.
Endnotes:
1 Penned by Associate Justice Hakim S. Abdulwahid, with Associate Justices Andres B. Reyes, Jr. and Estela M. Perlas-Bernabe (now a member of this Court), concurring; rollo, pp. 24-33.
2Id. at 35.
3Id. at 10, 99-100.
4Id. at 10-11.
5Id. at 11, 100.
6Id. at 100.
7Id. at 100-101. (Underscoring omitted)
8Id. at 101.
9Id.
10Id. at 102.
11 CA rollo, p. 85.
12Rollo, p. 103; id. at 114-115.
13Id. at 65; id. at 86.
14Rollo, p. 12.
15Id. at 66.
16Id. at 67.
17 CA rollo, pp. 87-91.
18Rollo, pp. 36-41.
19Id. at 41.
20Id. at 40.
21 Penned by Commissioner Ernesto C. Verceles, with Presiding Commissioner Lourdes C. Javier concurring and Commissioner Tito F. Genilo taking no part; id. at 42-49.
22Id. at 49.
23Id. at 47, citing POEA Standard Employment Contract for Seafarers Sec 20(B) par 3.
24Id.
25Id. at 48.
26 Resolution dated April 28, 2005; id. at 54-56.
27Rollo, pp. 24-33.
28Id. at 32.
29Id.
30Id. at 32-33.
31Id. at 33. (Emphasis in the original)
32 Resolution dated December 5, 2006, id. at 35.
33Rollo, p. 16.
34Id. at 17. 35
35Id. at 18.
36Id. at 20.
37Id. at 103-104.
38Id. at 104;CA rollo, p. 117.
39Id.; id.
40Rollo, p. 115.
41Id. at 127-129.
42Id. at 126-127.
43Magsaysay Maritime Services v. Laurel, G.R. No. 195518, March 20, 2013, 694 SCRA 225, 236.
44Nahas v. Olarte, G.R. No. 169247, June 2, 2014.
45Famanila v. Court of Appeals, 531 Phil. 470, 476 (2006).
46Magsaysay Maritime Services v. Laurel, supra note 43, at 236; Andrada v. Agemar Manning Agency Inc., G.R. No. 194758, October 24, 2012, 684 SCRA 587, 597.
47General Milling Corporation-Independent Labor Union v. General Milling Corporation, 667 Phil. 371, 393 (2011).
48Gabunas, Sr. v. Scanmar Maritime Services Inc., 653 Phil. 457, 466 (2010); Andrada v. Agemar Manning Agency Inc., supra note 46, at 601.
49Cootauco v. MMS Phil Maritime Services Inc., 629 Phil. 506, 519 (2010).
50Mitsubishi Motors Phils. Corp. v. Simon, 574 Phil. 687, 695 (2008).
51Id.
52 CA rollo, p. 114.
53Rollo, p. 65; id. at 86.
54Id. at 64; id. at 85. According to the United States National Library of Medicine, National Institutes of Health, nerve conduction velocity (NCV) is a test to see how fast electrical signals move through a nerve. On the other hand, electromyography (EMG) is a test used to diagnose nerve damage or destruction. Abnormal results are often due to nerve damage or destruction, although in some cases the results may be normal even if there is nerve damage. Source: http://www.nlm.nih.gov/medlineplus/ency/article/003927.htm, last accessed April 28, 2015, 10:30 AM.
55 CA rollo, pp. 121-123.
56Id. at 117.
57Andrada v. Agemar Manning Agency Inc., supra note 46, at 601.
58Id.
59Rollo, p. 67. (Italics supplied)
60 Strokes happen when blood flow to the brain stops. Within minutes, brain cells begin to die. There are two kinds of stroke. The more common kind, called ischemic stroke, is caused by a blood clot that blocks or plugs a blood vessel in the brain. The other kind, called hemorrhagic stroke, is caused by a blood vessel that breaks and bleeds into the brain. "Mini-strokes" or transient ischemic attacks (TIAs), occur when the blood supply to the brain is briefly interrupted. Source: http://www.nlm.nih.gov/medlineplus/stroke.html, last accessed: April 28, 2015, 10:58 AM.
61 Radiculopathy is a pinched nerve in the spine. It occurs when surrounding bones, cartilage, muscle, or tendons deteriorate or are injured. The trauma causes these tissues to change position so that they exert extra pressure on the nerve roots in the spinal cord. Source: http://www.healthline.com/health/radiculopathy#Overview1, last accessed: April 28, 2015, 1:00 PM.
62 CA rollo, pp. 121-123.
63Id.
64Rollo, p. 103; id. at 114-115.
65Far East Bank and Trust Company v. Pacilan, Jr., 503 Phil. 334, 343-344 (2005).
66Rivera v. Roman, 507 Phil. 274, 285 (2005).
67Panganiban v. Tar a Trading Shipmanagement Inc., 647 Phil. 675, 690-691 (2010); Andrada v. Agemar Manning Agency Inc., supra note 46, at 601.
68Andrada v. Agemar Manning Agency Inc., supra note 46, at 598.
69C.F. Sharp Crew Management, Inc. v. Took, G.R. No. 193679, July 18, 2012, 677 SCRA 296, 316.
70Wallem Maritime Services Inc. v. Tanawan, G.R. No. 160444, August 29, 2012, 679 SCRA 255, 267.
71Philippine Hammonia Ship Agency Inc. v. Dumadag, G.R. No. 194362, June 26, 2013, 700 SCRA 53, 65-68; Ayirngo v. Beamko Shipmanagement Corp., G.R. No. 203161, February 26, 2014, 717 SCRA 538, 551.
72Id.
73Vergara v. Hammonia Maritime Services Inc., 588 Phil. 895, 913 (2008).
74Id.
75Crystal Shipping Inc. v. Natividad, 510 Phil. 332, 340 (2005).
76Kestrel Shipping Co., Inc. v. Munar, G.R. No. 198501, January 30, 2013, 689 SCRA 795, 809-810.
77 One hundred seventy (170) days had passed since petitioner's repatriation on August 1, 2001 up to January 15, 2002, the date he was declared "fit to work."
78Genesis Transport Service, Inc., et al. v. Unyon Ng Malayang Manggagawa ng Genesis Transport, et al., 631 Phil. 350, 359 (2010).
79Mendoza v. David, 484 Phil. 128, 144 (2004).
80Coastal Safeway Marine Services Inc. v. Esguerra, G.R. No. 185352, August 10, 2011.
81Id., Ison v. Crewserve Inc., G.R. No. 173951, April 16, 2012, 669 SCRA 481; Sy v. Philippine Transmarine Carriers Inc., G.R. No. 191740, February 11, 2013, 690 SCRA202; Crewlink, Inc. v. Teringtering, G.R. No. 166803, October 11, 2012, 684 SCRA 12; Panganiban v. Tara Trading Shipmanagement Inc., supra note 67; Andrada v. Agemar Manning Agency Inc., supra note 46.
82Philman Marine Agency Inc. v. Cabanban, G.R. No. 186509, July 29, 2013, 702 SCRA 467.
83Crew and Ship Management International Inc. v. Soria, G.R. No. 175491, December 10, 2012, 687 SCRA 491; Panganiban v. Tara Trading Shipmanagement Inc., supra note 67.