SECOND DIVISION
G.R. No. 222348, November 20, 2019
JHEROME G. ABUNDO, PETITIONER VS. MAGSAYSAY MARITIME CORPORATION, GRAND CELEBRATION LDA AND/OR MARLON ROÑO,* RESPONDENTS.
D E C I S I O N
INTING, J.:
Before this Court is a petition for review1 under Rule 45 of the Rules of Court assailing the Decision2 dated June 10, 2015 and Resolution3 dated January 14, 2016 of the Court of Appeals (CA) in CA-G.R. SP No. 136759, which reversed and set aside the Decision4 dated April 23, 2014 of the National Labor Relations Commission (NLRC) in NLRC LAC No. (OFW M) 01-000051-14 and NLRC NCR Case No. (M) 06-08397-13.
x x x xFurther, on April 26, 2013, Dr. Ramon Lao (Dr. Lao), a company surgeon, suggested a Grade 10 disability due to ankylosed wrist.11
Patient complained of left wrist pain upon extreme movements.
There is weak grip, right.
There is also paresthesia on the right thumb.
He was advised to continue his rehabilitation.
His interim assessment is Grade 10 - ankylosis of the left wrist in normal position.10
Mr. Abundo continues to have weakness and pain of the right extremity despite continuous physiotherapy. Range of motion is restricted particularly in supination. Because his grip is weak, he is unable to lift heavy objects, the kind of work seaman are expected to perform. He has lost his pre-injury capacity and is UNFIT to work back at his previous occupation.With these findings, the petitioner demanded from the respondents the maximum benefit under the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC) and claimed to be suffering from permanent disability. Instead of granting permanent disability benefits, the respondents offered US$10,075.00, an amount equivalent to a Grade 10 disability. As a result, the petitioner filed a labor complaint against the respondents seeking the payment of sickness allowance, permanent and total disability benefits, moral and exemplary damages, and attorney's fees.
x x x x
In addition, excessive forces associated with throwing and swinging activities may aggravate the present condition, the patient sustained his injury following a direct trauma to his arm; although he has received first aid the firs definitive treatment was immediately done. The signs and symptoms associated with these injuries are directly related to the degree of severity. There may or may not be any visible or palpable deformity. Point tenderness is normally present at the site of injury, and may remain. The patient has demonstrated a limited range of motion, weakness of the hand in the affected side and an increase in pain at the involved site with attempted movements.
Mr. Abundo's pre-injury job requires that he operates some machines and lift heavy objects. He may also be required to use tools to adjust nuts, bolts and screws on some occasions. Mr. Abundo claimed that he can no longer perform these functions because he no longer has the strength in his right hand.
Mr. Abundo, with his present condition, he will not be able to perform his pre-injury work because of the physical demands it entails. Some [restriction] must be placed on his work activities. This is in order to prevent the impending late sequelae of his current condition. He presently does not have the physical capacity to return to the type of work he was performing at the time of the injury. He is therefore, UNFIT in any capacity for further strenuous duties.12
WHEREFORE, PREMISES CONSIDERED, judgment is rendered ordering respondents, jointly and severally to pay complainant Sixty Thousand U.S. Dollars (U.S. $60,000.00) or its peso equivalent at the time of payment, plus 10% of the total award as attorney's fees.Undaunted, the respondents a pealed to the NLRC.
All other claims are dismissed for lack of merit.
SO ORDERED.
WHEREFORE, premises considered, the appeal is hereby DENIED and the assailed Decision affirmed.Subsequently, the respondents filed a motion for reconsideration which was denied by the NLRC.
SO ORDERED.18
WHEREFORE, premises considered, the instant Petition for Certiorari is GRANTED such that the assailed decision and resolution dated 23 April 2014 and 16 June 2014 respectively, both rendered by the National Labor Relations Commission Sixth Division are hereby REVERSED and SET ASIDE. Private respondent Jherome G. Abundo is awarded US$10,075.00 or its Philippine Peso equivalent as his disability benefit. Lastly, the prayer for temporary restraining order and/or preliminary injunction is DENIED for being moot.The CA held that referral to a third doctor is mandatory.21 It ruled that it is the obligation of the seafarer to notify the concerned employer of his intention to settle the issue through the appointment of a third doctor.22 The CA upheld the assessment of Dr. Go, the company-designated physician, stating that the petitioner suffers from Grade 10 disability.23
SO ORDERED.20
A. The Court of Appeals as in error when it reversed the NLRC's Decision as e NLRC did not act with grave abuse of discretion s nee its decision is based on substantial evidence.The basic contention of the petitioner is that he was permanently disabled as a result of the injuries he suffered while working as a seafarer. He maintains that disability should be based on one's incapacity to work. The petitioner asserts that since he was unable to engage in a gainful employment even after the statutory 120/240-day period, he is entitled to permanent disability benefits.28
B. The Court of Appeals committed a serious mistake when it failed to uphold the evaluation made by the NLRC.
C. The Court of Appeals s in error in its application of the POEA-SEC conflict-resolution procedure regarding the third physician referral.
D. The Court of Appeals seriously erred when they failed to uphold that it is by operation of law that the petitioner is considered a totally and permanently disabled, and as such, the "third physician referral rule" finds no application in the instant case.27
Section 20. COMPENSATION AND BENEFITSThe POEA-SEC should never be read in isolation with other laws such as the provisions of the Labor Code on disability and the AREC. Otherwise, the disability rating of the seafarer will be completely at the mercy of the company-designated physician, without redress, should the latter fail or refuse to give one.38 It must be emphasized that the POEA SEC is not the only contract between the parties that governs the determination of the disability compensation due the seafarer.39 The POEA-SEC should be read hand in hand with the Labor Code and the AREC in resolving disability compensation cases.
A. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS
3. x x x x
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.
Art. 198 [192]. Permanent and total disability. -In addition, Section 2(b) of Rule VII of the AREC defines disability as follows:
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 for in the Rules[.]
Sec. 2. Disability. - x x x.Likewise, Section 2, Rule X of the AREC reads:
(b) A 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 for in Rule X of these Rules.
Sec. 2. 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 any time 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.There is no question that the referral to a third doctor as provided in Section 20(A)(3) of the POEA-SEC is mandatory in case there are disagreements made by the company-designated physician and the seafarer's chosen physician as to the seafarer's medical condition. This Court in the recent cases of Murillo v. Philippine Transmarine Carriers, Inc.40 and Dionio v. Trans-Global Maritime Agency, Inc.,41 reiterated the settled rule that the referral to a third doctor is mandatory, and that the seafarer's failure to abide thereby is a breach of the POEA-SEC which makes the assessment of the com any-designated physician final and binding.
We point to our discussion in Kestrel Shipping Co., Inc. v. Munar, 15 underscoring that the assessment of the company designated physician of the seafarer's fitness to work or permanent disability within the period of 120 o 240 days must be definite, viz.:Moreover, in Sunit, this Court stressed:
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.44 (Emphasis and underscoring omitted.)
A final and definite disability assessment is necessary in order to truly reflect the true extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such. Othe1wise, the corresponding disability benefits awarded might not be commensurate with the prolonged effects of the injuries suffered.45This Court likewise held in Carcedo v. Maine Marine Philippines, Inc.(Carcedo),46 that failure of the company-designated doctor to issue a final assessment made the disability of the seafarer therein pem1anent and total, thus:
We cannot agree with the Court of Appeals and the Labor Arbiter that the 24 March 2009 disability assessment made by Dr. Cruz was definitive. To our mind, the said disability assessment was an interim one because Carcedo continued to require medical treatments even after 24 March 2009. He was confined in the hospital from 20 April 2009 to 6 June 2009, where he underwent serial debridements, curettage, sequestrectomy and even amputation of the right first metatarsal bone. He was certainly still under total disability, albeit temporary at that time.Furthermore, in Fil-Pride Shipping Co., Inc. et al. v. Balasta,48 this Court instructed that the company-designated physician must arrive at a definite assessment of the seafarer's fitness to work or permanent disability within the period of 120 or 240 days, otherwise, the seafarer's medical condition remains unresolved and the latter shall be deemed totally and permanently disabled. This Court .n1led in this wise:
His discharge from the hospital was 137 days from repatriation. Following the Court's rulings in Vergara and Kestrel, since Carcedo required further medical treatments beyond the 120 day period, (sic) his total and temporary disability was extended. The company-designated physician then had until 240 days from repatriation to give the final assessment.
x x x x
Here, the company-designated physician failed to give a definitive impediment rating of Carcedo's disability beyond the extended temporary disability period, after the 120-day period but less than 240 days. By operation of law, therefore, Carcedo's total and temporary disability lapsed into a total and permanent disability.47 (Italics supplied.)
The company-designated physician must arrive at a definite assessment of the seafarer's fitness to work or permanent disability within the period of 120 or 240 days, pursuant to Article 12(c)(1) of the Labor Code and Rule X, Section 2 of the AREC. If he fails to do so and the seafarer's medical condition remains unresolved, the latter shall be deemed totally and permanently disabled.49In the case at bench, the disability grading that Dr. Go, the company-designated doctor, issued was merely an interim assessment and not a final and categorical finding. If it were otherwise, Dr. Go would not have advised the petitioner to continue his rehabilitation. Also, Dr. Lao's subsequent medical report cannot be considered as final assessment as he merely suggested disability grading. Dr. Lao was not the designated doctor who medically evaluated the petitioner's condition. His report is merely a suggestion subject for evaluation by Dr. Lim, the medical coordinator.
In this case, petitioner seek the Court's attention to the "final" assessment, dated April 19, 2010, issued by the attending physician, which was earlier quoted.Records reveal that petitioner remained incapacitated to resume sea duties even after the company-designated doctor evaluated his medical condition. This means that the petitioner had to still undergo medical treatment even after being seen by the company-designated physician. Obviously, even after the lapse of the maximum 240-day period there was still no final assessment made by the company-designated doctor as to the petitioner's disability. With Dr. Go's failure to issue a final and definite assessment of petitioner's condition within the 240-day period, petitioner was thus deemed totally and permanently disabled. It is apparent that petitioner's disability and incapacity to resume working continued for more than 240 days.
To the petitioners, this assessment forecloses any claim that Zafra's injury is total or one that incapacitates the employee to continue performing his work, They treat it as the e1iification required under Section 20(B)(3) of the POEA-SEC as it contained his degree of disability and fitness to resume sea duties.
The statement, however, is clearly devoid of any definitive declaration as to the capacity of Zafra to return to work or at least a categorical and final degree of disability. As pointed out by the CA, all the medical certificates found in the record merely recited his medical history and, worse it made no mention as to whether the seafarer was even capable of resuming work. In fact, it was merely a suggestion coming from the attending doctor and not from the company-designated physician, as if the letter was written while the process of evaluation was still being completed. To stress, Section 20(B)(3) of the POEA-SEC requires the declaration of fit to work or the degree of permanent disability by the company-designated physician and not by anyone else. Here, it was only Dr. Chuasuan, Jr. who signed the suggested assessment, addressing the letter solely to Dr. Lim, the company-designated physician. Taken in this context, no assessment, definitive in character, from the company-designated physician's end was issued to reflect whether Zafra was fit or unfit to resume duties within the 120/240-day period, as the case may be. Thus, the Court deems him unfit to resume work on board a sea vessel.51 (Emphasis supplied; italics supplied.)
In this case, the third-doctor-referral provision did not find application because of the lack of a definitive disability assessment by the company-designated physician. x x x52Considering the absence of definitive disability assessment made by the company-designated physician, it was by operation of law that the petitioner became permanently disabled.
Endnotes:
* "RONO" in some parts of the rollo.
** Designated additional member per Special Order No. 2724 dated October 25, 2019.
1Rollo, pp. 28-80.
2Id. at 9-22; penned by Associate Justice Marlene Gonzales-Sison with Associate Justices Remedios A. Salazar-Fernando and Ramon A. Cruz, concurring.
3Id. at 24-25.
4Id. at 152-165; penned by Commissioner Isabel G. Panganiban-Ortiguerra with Presiding Commissioner Joseph Gerard E. Mabilog and Commissioner Nieves E. Vivar-De Castro, concurring.
5Id. at 29.
6Id. at 153.
7Id.
8Rollo, pp. 11, 397.
9Id. at 154, 436.
10Id. at 438.
11Id. at 439.
12Id. at 415.
13Id. at 105-111; penned by Labor Arbiter Virginia T. Luyas-Azarraga.
14Id. at 110.
15Id. at 111.
16Id. at 152-165.
17Id. at 161.
18Id. at 164.
19Id. at 9-22.
20Id. at 21.
21Id. at 17.
22Id. at 18.
23Id. at 19.
24Id. at 19-21.
25Id. at 21.
26Id. at 24-25.
27Id. at 35-36.
28Id. at 57-61.
29Id. at 659-691.
30Peckson v. Robinson Supermarket Corp. et al., 713 Phil. 471, 479 (2013), citing Acebedo Optical v. National Labor Relations Commission, 554 Phil. 524, 541 (2007).
31Id. at 486.
32Dela Rosa v. Michaelmar Philippines, Inc., 66 Phil. 154, 165 (2011), citing Bolinao Security and Investigation Service, Inc. v. Toston, 466 Phil. 153, 160-161 (2004).
33AMA Computer College-East Rizal, et al. v. Ignacio, 608 Phil. 436, 453 (2009) citing San Miguel Corporation v. Aballa, G.R. No. 149011, June 8, 2005, 461 SCRA 392, 415.
34 RULES OF COURT, Rule 45, Section 1.
35Republic v. De Borja, G.R. No.187448, January 9, 2017, 814 SCRA 10, 18.
36See Heirs of Mariano v. City of Naga, G.R. No. 197743, March 12, 2018.
37 As provided in Twin Towers Condominium Corp. v. Court of Appeals, 446 Phil. 280, 310 (2003), the following are the exceptions: (a) where there is grave abuse of discretion; (b) when the finding is grounded entirely on speculations, surmises or conjectures; (c) when the inference made is manifestly mistaken, absurd or impossible; (d) when the judgment of the Court of Appeals was based on a misapprehension of facts; (e) when the factual findings are conflicting; (f) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee; (g) when the Court of Appeals manifestly overlooked certain relevant fact not disputed by the parties and which, if properly considered, would justify a different conclusion; and, (b) where the findings of fact of the Court of Appeals are contrary to those of the trial court, or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by the respondent or where the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.
38Carcedo v. Maine Marine Philippines, Inc., et al., 758 Phil. 166, 184 (2015).
39Id.
40 G.R. No. 221199, August 15, 2018.
41 G.R. No. 217362, November 19, 2018.
42 806 Phil. 505 (2017).
43 702 Phil. 717 (2013).
44 Supra note 42, at 517.
45Id. at 519.
46 758 Phil. 166 (2015).
47Id. at 183-184.
48 728 Phil. 297 (2014).
49Id. at 312.
50 759 Phil. 514 (2015).
51Id. at 527-528.
52Carcedo v. Maine Marine Philippines, Inc., supra note 38 at 189.
53 Article 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:
x x x x
(8) In actions for indemnity under workmen's compensation and employer's liability laws.
54Sunit v. OSM Maritime Services, Inc., et al., supra note 42 at 524.