THIRD DIVISION
G.R. No. 213482, June 26, 2019
GEORGE M. TOQUERO, PETITIONER, v. CROSSWORLD MARINE SERVICES, INC., KAPAL CYPRUS, LTD., AND ARNOLD U. MENDOZA, RESPONDENTS.
D E C I S I O N
LEONEN, J.:
Disability ratings should be adequately established in a conclusive medical assessment by a company-designated physician. To be conclusive, a medical assessment must be complete and definite to reflect the seafarer's true condition and give the correct corresponding disability benefits.1
This Court resolves a Petition for Review on Certiorari2 assailing the April 16, 2014 Decision3 and July 17, 2014 Resolution4 of the Court of Appeals in CA-G.R. SP No. 132195. The Court of Appeals ruled that George M. Toquero's (Toquero) injury is not compensable under the Collective Bargaining Agreement and the Philippine Overseas Employment Administration Standard Employment Contract (POEA Standard Employment Contract).
On January 16, 2012, Toquero was employed by Crossworld Marine Services, Inc. (Crossworld) on behalf of its principal, Kapal Cyprus, Ltd., as a fitter for vessel MV AS VICTORIA.5 His employment had the following terms and conditions:
On January 12, 2012, Toquero underwent a pre-employment medical examination and was declared fit for sea duty. He was deployed on January 23, 2012.7
Duration of contract : 07 Months (+/-1) Position : FITTER Basic Monthly Salary : USD 774.00 Hours of Work : 40hrs/week Guaranteed Overtime : USD 576.00 in excess of 103 [hours] at USD 5.59 Leave Pay : USD 206.00 Subsistence Allowance : USD 152.00 Monthly Bonus : USD 31.00 Total : USD 1,739.00 Point of Hire : MANILA, PHILIPPINES CBA Reference No. : IMEC-CBA6
At the clinic, he was examined by one of our doctors and physical examination findings showed a scar and depression on the left parietal area.On June 11, 2012, Toquero underwent a routine electroencephalography conducted by Dr. Benilda C. Sanchez-Gan, an epileptologist.18 The Medical Report indicated:
Initial Impression: Status-Post Craniotomy, Left Parietal area, with residual Paresthesia of the C1-C4; Depressed Skull, Left Parietal
Last May 23, 2012, Eng. Fitter Tuquero was referred to our Neurologist, Dr. Epifania Collantes and was again examined. Diagnosis given: Status-Post Head Trauma Secondary to Mauling with Depressed Skull, Left Parietal Area.
. . . .
Recommendation:1. To undergo EEG (Electro-Encephalogram).17
TECHNICAL DESCRIPTION:Toquero requested that a metal plate be implanted in his skull to cover the hole in it, since only his scalp and hair protected his brain from further injury. The company-designated physician assured him that they would make the proper request, but to no avail.20
. . . .Photic stimulation and hyperventilation had no effect. No focal abnormality or epileptiform activity was present. Simultaneous single lead EKG showed irregular heart rate of 66-72/minute.IMPRESSION:This is a normal awake, drowsy and sleep EEG recording.19
Seaman Toquero became incapacitated because of the serious head injury that he incurred on board. He has frequent headache and dizziness as a result of severe jarring of the brain. The physiological state of the brain has been altered by the injury. Numbness of the face and scalp is also a permanent manifestation of the injury. He has a large bone defect which may pose further damage to his brain. Contusion of the brain tissue also occurred at the site of the skull fracture. Permanent physiological and functional damage may not be apparent initially but will gradually and progressively develop later. At this time, he is no longer allowed to engage in heavy physical activities. The ship's environment is also dangerous to him because of the unsteady state of the vessel when sailing at high seas. Dizziness may set anytime and may result to fall, which may cause further irreparable injury. Because of the impediment, he is permanently unfit to return to work as a seaman in any capacity and considered for total permanent disability.23 (Emphasis in the original)Toquero then asked Crossworld for his sickness allowance, but this was rejected.24
A seafarer who suffers injury as a result of an incident from any cause whatsoever whiles in the employment of the Managers/Owners, including accidents occur[r]ing whilest travelling to or from the ship or as a result of marine or other similar peril, and whose ability to work is reduced as a result thereof, shall receive from the Managers/Owners, in addition to his/her sick pay compensation as stated below: Compensation:On January 31, 2013, the Labor Arbiter rendered a Decision29 dismissing the Complaint for lack of merit. However, since Toquero was injured while working on board, it ruled that Toquero was entitled to the award of US$5,000.00 in the interest of justice and equity and for humanitarian considerations.30 The dispositive portion of the Decision read:
a) Masters and Officers and ratings above AB - US$250,000
b) All ratings AB and below- - US$125,000
Loss of Profession caused by disability (accident) shall be secured by 100% of the compensation.28
WHEREFORE, premises considered, the complaint is hereby dismissed for lack of merit.On appeal, the National Labor Relations Commission, in its June 14, 2013 Decision,32 modified the Labor Arbiter's Decision. It vacated and set aside the US$5,000.00 award, but ordered Crossworld to pay Toquero sickness allowance and attorney's fees equivalent to 10% of the judgment award.33 The dispositive portion of its Decision read:
Respondents are held solidarity liable to pay complainant his monetary award as specified above.
SO ORDERED.31
WHEREFORE, all of the foregoing premises considered, judgment is hereby rendered finding partial merit in the instant appeal; the appealed Decision is hereby MODIFIED in that Respondents are hereby ordered to pay Complainant sickness allowance, and attorney's fees equivalent to ten percent (10%) of the judgment award.The National Labor Relations Commission found that Toquero's injury was work-related because the master of vessel directed Toquero and Fong to work together despite knowing their previous altercation. Despite this, it ruled that Toquero's injury was not compensable because it resulted from a criminal assault, which was not an accident. It also did not give weight to the findings of Toquero's chosen physicians as they were not supported by medical examinations.35
The award of US$ 5,000.00 is hereby VACATED or SET-ASIDE.
So Ordered.34
WHEREFORE, the instant Petition is hereby DENIED. The assailed June 14, 2013 Decision and July 31, 2013 Resolution of the National Labor Relations Commission (Second Division) in NLRC LAC No. 04-000343-13 (NLRC-OFW Case No. 06-09574-12) are AFFIRMED with the only MODIFICATION that We award the sum of US$5,000.00 in favor of Toquero for his further medical treatment. We, however, affirm in all other aspects.Toquero filed a Motion for Reconsideration, but this was denied in the Court of Appeals' July 17, 2014 Resolution.43
SO ORDERED.42 (Emphasis in the original)
(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures; (2) When the inference made is manifestly mistaken, absurd or impossible; (3) Where there is a grave abuse of discretion; (4) When the judgment is based on a misapprehension of facts; (5) When the findings of fact are conflicting; (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) The findings of the Court of Appeals are contrary to those of the trial court; (8) When the findings of fact are conclusions without citation of specific evidence on which they are based; (9) When the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) The finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record.68 (Citations omitted)For this Court to review the facts of the case, these exceptions must be alleged, substantiated, and proved by the parties.69
. . . The two components of the coverage formula — "arising out of and in the course of employment" — are said to be separate tests which must be independently satisfied; however, it should not be forgotten that the basic concept of compensation coverage is unitary, not dual, and is best expressed in the word, "work-connection," because an uncompromising insistence on an independent application of each of the two portions of the test can, in certain cases, exclude clearly work-connected injuries. The words arising out of refer to the origin or cause of the accident, and are descriptive of its character, while the words in the course of refer to the time, place and circumstances under which the accident takes place.In Jebsens Maritime, Inc. v. Babol,79 the 'principle of work-relation' was explained in this wise:
As a matter of general proposition, an injury or accident is said to arise "in the course of employment" when it takes place within the period of the employment, at a place where the employee reasonably may be, and while he is fulfilling his duties or is engaged in doing something incidental thereto.78 (Emphasis supplied)
Pursuant to the said contract, the injury or illness must be work-related and must have existed during the term of the seafarer's employment in order for compensability to arise. Work-relation must, therefore, be established.Here, the two (2) elements of a work-related injury are present. Not only was petitioner's injury work-related, it was sustained during the term of his employment contract. His injury, therefore, is compensable.
As a general rule, the principle of work-relation requires that the disease in question must be one of those listed as an occupational disease under Sec. 32-A of the POEA-SEC. Nevertheless, should it be not classified as occupational in nature, Section 20 (B) paragraph 4 of the POEA-SEC provides that such diseases are disputably presumed as work-related.
In this case, it is undisputed that NPC afflicted respondent while on board the petitioners' vessel. As a non-occupational disease, it has the disputable presumption of being work-related. This presumption obviously works in the seafarer's favor. Hence, unless contrary evidence is presented by the employers, the work-relatedness of the disease must be sustained.80 (Citations omitted)
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. 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.This Court has held that failure to observe the procedure under this Section means that the assessment of the company-designated physician prevails.89 In Nonay v. Bahia Shipping Services, Inc.:90
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.
Referral to a third doctor is a mandatory procedure. Failure to comply with this rule, without any explanation, is a breach of contract that is tantamount to failure to uphold the law between the parties.92 Hence, when the seafarer fails to express his or her disagreement by asking for the referral to a third doctor, the findings of the company-designated physician is given more credence and is final and binding on the parties.93The POEA Standard Employment Contract and the CBA clearly provide that when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work shall be determined by the company-designated physician. If the physician appointed by the seafarer disagrees with the company-designated physician's assessment, the opinion of a third doctor may be agreed jointly between the employer and the seafarer to be the decision final and binding on them.Indeed, for failure of Gepanaga to observe the procedures laid down in the POEA-SEC and the CBA, the Court is left without a choice but to uphold the certification issued by the company-designated physician that the respondent was "fit to go back to work."91 (Emphasis supplied, citation omitted)
Thus, while petitioner had the right to seek a second and even a third opinion, the final determination of whose decision must prevail must be done in accordance with an agreed procedure. Unfortunately, the petitioner did not avail of this procedure; hence, we have no option but to declare that the company-designated doctor's certification is the final determination that must prevail.
In determining whether or not a given illness is work-related, it is understandable that a company-designated physician would be more positive and in favor of the company than, say, the physician of the seafarer's choice. It is on this account that a seafarer is given the option by the POEA-SEC to seek a second opinion from his preferred physician. And the law has anticipated the possibility of divergence in the medical findings and assessments by incorporating a mechanism for its resolution wherein a third doctor selected by both parties decides the dispute with finality, as provided by Sec. 20 (B) (3) of the POEA-SEC quoted above.95Nevertheless, this is not a hard and fast rule. This Court has acknowledged that the company-designated physician's findings tend to be biased in the employer's favor. In instances where the company-designated physician's assessment is not supported by medical records, the courts may give greater weight to the findings of the seafarer's personal physician.96
According to the attending Neurologist, an orthopedic surgeon cannot adequately assess the neurologic status of the patient. A complete neurologic examination includes memory and cognitive assessment and should be done before declaring the patient incapacitated. This will show whether the patient has mild, moderate or severe brain dysfunctions. In addition, neurologic examination will evaluate the motor strength, gait, balance and other deficits of the patient.101Despite the recommendation, Dr. Bacungan did not conduct all the proper tests to fully evaluate petitioner's condition. Respondents solely relied on an electroencephalography run by the company-designated physician. In their Comment, respondents only referred to this test in concluding that petitioner was not suffering from a total and permanent disability.102 Nothing in the records shows that other tests were conducted.
1) | total and permanent disability allowance in the amount of Two Hundred Fifty Thousand US Dollars (US$250,000.00) or its equivalent in Philippine Peso at the time of payment; |
2) | sickness allowance equivalent to 55 days of his basic wage; and |
3) | attorney's fees equivalent to 10% of the total monetary award. |
Very truly yours, (SGD) WILFREDO V. LAPITAN Division Clerk of Court |
Endnotes:
1Magsaysay Mol Marine, Inc. v. Atraje, G.R. No. 229192, July 23, 2018, http://elibrary.judiciaiygov.ph/thebookshelf/showdocs/1/64478 [Per J. Leonen, Third Division].
2Rollo, pp. 3-30. Filed under Rule 45 of the Rules of Court.
3 Id. at 110-122. The Decision was penned by Associate Justice Franchito N. Diamante, and concurred in by Associate Justices Celia C. Librea-Leagogo and Melchor Q.C. Sadang of the Fourteenth Division, Court of Appeals, Manila.
4 Id. at 124-125. The Resolution was penned by Associate Justice Franchito N. Diamante, and concurred in by Associate Justices Celia C. Librea-Leagogo and Melchor Q.C. Sadang of the Former Fourteenth Division, Court of Appeals, Manila.
5 Id. at 4.
6 Id.
7 Id.
8 Id.
9 Id. at 4 and 253.
10 Id. at 4-5.
11 Id. at 5.
12 Id.
13 Id. at 5 and 35.
14 Id. at 5.
15 Id.
16 Id.
17 Id. at 126-127.
18 Id. at 6 and 38.
19 Id. at 38.
20 Id. at 6.
21 Id.
22 Id.
23 Id.24 Id.
25 Id. at 7 and 90.
26 Id. at 7.
27 Id.
28 Id.
29 Id. at 85-93. The Decision in NLRC-NCR 06-09574-12 OFW(M) was penned by Labor Arbiter Edgardo M. Madriaga of the National Labor Relations Commission, Quezon City.
30 Id. at 92-93.
31 Id. at 93.
32 Id. at 95-106. The rollo lacked some of the Decision's pages.
33 Id. at 8.
34 Id.
35 Id. at 105-106.
36 Id. at 3.
37 Id. at 110-122.
38 Id. at 119.
39 Id. at 120.
40 Id. at 121.
41 Id.
42 Id. at 121-122.
43 Id. at 124-125.
44 Id. at 3-30.
45 Id. at 134-135.
46 Id. at 145-165.
47 Id. at 165-168.
48 Id. at 14-15.
49 Id. at 16-17.
50 Id. at 17.
51 Id.
52 Id. at 18.
53 Id. at 19.
54 Id.
55 Id. at 23-24.
56 Id. at 26.
57 Id. at 27.
58 Id. at 10.
59 Id. at 156.
60 Id.
61 Id. at 156-158.
62 Id. at 158-159.
63 Id. at 160.
64 Id. at 160-161.
65 Id. at 161.
66Pascual v. Burgos, 116 Phil. 167 (2016) [Per J. Leonen, Second Division].
67 269 Phil. 225 (1990) [Per J. Bidin, Third Division].
68 Id. at 232.
69Pascual v. Burgos, 776 Phil. 167 (2016) [Per J. Leonen, Second Division].
70Tagle v. Anglo-Eastern Crew Management, Philippines, Inc., 738 Phil. 871 (2014) [Per J. Mendoza, Third Division].
71 POEA Memorandum Circular No. 010-10(2010). Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships, available at http://poea.gov.ph/memorandumcirculars/2010/10.pdf last accessed on June 26, 2019.
72Ebuenga v. Southfield Agencies, Inc., G.R. No. 208396, March 14, 2018, [Per J. Leonen, Third Division].
73NYK-Fil Ship Management Inc. v. Talavera, 591 Phil. 786 (2008) [Per J. Carpio Morales, Second Division].
74 Id.
75Grieg Philippines, Inc. v. Gonzales, 814 Phil. 965 (2017) [Per J. Leonen, Second Division].
76Magsaysay Maritime Services v. Laurel, 707 Phil. 210 (2013) [Per J. Mendoza, Third Division].
77 703 Phil. 190 (2013) [Per J. Peralta, Third Division].
78 Id. at 198-199 citing Iloilo Dock & Engineering Co. v. Workmen's Compensation Commission, 135 Phil 95 (1968) [Per J. Castro, En Banc].
79 722 Phil. 828 (2013) [Per J. Mendoza, Third Division].
80 Id. at 838-839.
81Rollo, pp. 241 and 254-255.
82 Id. at 254.
83 Id. at 253.
84 Id. at 269.
85 Philippine Overseas Employment Administration-Standard Employment Contract (2010), sec. 20(D) states:
D. No compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.
86 1 ROBERT COOTER, LAW AND ECONOMICS 310 (4th ed., 2003).
87 5 ROBERT D. COOTER, Economic Theories of Legal Liability, THE JOURNAL OF ECONOMIC Perspectives, 11, 16 (1991).
88 1 ROBERT COOTER, LAW AND ECONOMICS 386 (4th ed., 2003).89Nonay v. Bahia Shipping Services, Inc., 781 Phil. 197 (2016) [Per J. Leonen, Second Division] citing Veritas Maritime Corporation v. Gepanaga, 753 Phil. 308 (2015) [Per J. Mendoza, Second Division].
90 781 Phil. 197 (2016) [Per J. Mendoza, Second Division].
91 Id. at 226-227.
92Philippine Hammonia Ship Agency, Inc. v. Dumadag, 712 Phil. 507 (2013) [Per J. Brion, Second Division].
93Manansala v. Marlow Navigation Philippines, Inc., G.R. No. 208314, August 23, 2017, [Per J. Leonen, Third Division].
94 707 Phil. 194 (2013) [Per J. Velasco, Jr., Third Division].
95 Id. at 207.
96Nonay v. Bahia Shipping Services, Inc., 781 Phil. 197 (2016) [Per J. Mendoza, Second Division].
97Magsaysay Mol Marine, Inc. v. Atraje, G.R. No. 229192, July 23, 2018, [Per J. Leonen, Third Division].
98 Id. citing Sunit v. OSM Maritime Services, Inc., G.R. No. 223035, February 27, 2017, 818 SCRA 663 [Per J. Velasco, Jr., Third Division].
99Olidana v. Jebsens Maritime, Inc., 772 Phil. 234 (2015) [Per J. Mendoza, Second Division].
100Rollo, pp. 130-131.
101 Id. at 130.
102 Id. at 150-152.
103 CONST., art. XIII, sec. 3 provides:
SECTION 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.
It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.
The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.
The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth.
104 LABOR CODE, art. 4 provides:
ARTICLE 4. Construction in favor of labor. — All doubts in the implementation and interpretation of the provisions of this Code, including its implementing rules and regulations, shall be resolved in favor of labor.
105 CIVIL CODE, art. 1702 provides:
ARTICLE 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer.
106Malabunga, Jr. v. Cathay Pacific Steel Corporation, 759 Phil. 458, 479 (2015) [Per J. Del Castillo, Second Division] citing Asuncion v. National Labor Relations Commission, 414 Phil. 329 (2001) [Per J. Kapunan, First Division].
107 Philippine Overseas Employment Administration-Standard Employment Contract (2010), sec. 20(A)(3) provides:
3. 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.
108 CIVIL CODE, art. 2208 provides:
ARTICLE 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10)When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.
In all cases, the attorney's fees and expenses of litigation must be reasonable.
109See Nacar v. Gallery Frames, 716 Phil. 267 (2013) [Per J. Peralta, En Banc].