THIRD DIVISION
G.R. No. 237130, July 01, 2020
ADEX R. MACAHILAS, Petitioner, v. BSM CREW SERVICE CENTRE PHILS., INC., ET AL., Respondents.
D E C I S I O N
CARANDANG, J.:
The instant petition1 under Rule 45 of the Rules of Court assails the Decision2 dated August 31, 2017 of the Court of Appeals (CA) in CA-G.R. SP No. 146261, dismissing the complaint for payment of permanent and total disability benefits filed by petitioner Adex Macahilas (Macahilas) against respondents BSM Crew Service Centre Phils., Inc. (BSM) and its foreign employer Bernhard Schulte Shipmanagement (Deutschland) GMBH & Co. KG, and Narcissus L. Duran.
Macahilas worked for BSM under several employment contracts. On August 30, 2013, Macahilas commenced his 8-month contract3 with BSM as Third Engineer on board APL Canada. His employment was covered by a Collective Bargaining Agreement (CBA) called Verdi/ITF Berlin IMES IBI CBA.4
As third engineer, Macahilas worked inside the ship's engine room as he was responsible for operating and maintaining the ship's engine and other mechanical systems and equipment, such as the boilers, fuel, main and auxiliary engines, condensate and feed systems. He worked in confined vessel spaces, and was exposed to injurious and harmful chemicals, dust, fumes/emissions, and other irritant agents. Macahilas claims that his work also entailed strenuous lifting, pushing, and moving of equipment and materials on board the ship.5
On December 29, 2013, while on board APL Canada, Macahilas experienced abdominal pain, vomiting, and chills. Oral medications given on board did not help improve his conditions. As a result, Macahilas was referred for admission in a hospital in Mexico, where he was diagnosed with Phase IV Appendicitis. Macahilas underwent appendectomy, but his wound was infected.6 On January 17, 2014, he was medically repatriated to the Philippines for further treatment of his wound infection. On examination, the company-designated physician opined that his appendicitis was not work-related because "in most cases [said condition] results from blockage of the appendix usually by a fecalith, causing inflammation x x x."7 Despite said finding, Macahilas was treated for the infection with weekly follow-ups. In April 2014, his wound totally healed but after a CT-scan exam, Macahilas's incisional hernia increased in size. In December 2014, Macahilas underwent a hernia repair with mesh and was later discharged. He was advised to have follow-ups with the company-designated physician. Over a year since Macahilas's medical repatriation, or on March 12, 2015, he was declared fit to work.8
Macahilas complained of pricking pains in his lower abdomen area where he was operated. He went to see his personal physician, who assessed that he was unfit to resume work as seafarer, and that his illness was work-aggravated/related. With his assessment, Macahilas claimed permanent and total disability benefits from BSM. The parties failed to agree on the compensability of Macahilas's illness, which constrained him to file a labor complaint with the National Labor Relations Commission (NLRC).9
In a Decision10 dated November 27, 2017, the Labor Arbiter (LA) awarded permanent and total disability benefits to Macahilas. The LA held that although Macahilas was immediately subjected to medical examination upon his repatriation, no final report had been issued on Macahilas's appendicitis. The assessment stating that his condition was "not work-related" was merely a private communication from the company-designated physician to BSM. There was no indication that Macahilas had been informed of this medical opinion. Since his medical repatriation, Macahilas had been under treatment for 419 days and no final assessment had been issued within the mandated 240-day period. In the course of further management of his conditions due to his appendectomy, Macahilas was also found to have incisional hernia. Macahilas's diagnosis of hernia is a listed occupational illness under the Philippine Overseas Employment Agency — Standard Employment Contract (POEA-SEC). Hence, said condition is a compensable illness. Contrary to the opinion of the company-designated physician, the LA held that Macahilas's appendicitis was work-aggravated/related. The appendicitis may have been caused or aggravated by food provided onboard the vessel or the nature of his work. Finally, since Macahilas's final medical assessment was issued beyond the 240-day period, he was deemed entitled to permanent and total disability benefits amounting to US$60,000.00 in accordance with the POEA-SEC and not the CBA because his conditions did not arise from an accident as required under the CBA. He was, likewise, awarded attorney's fees amounting to US$6,000.00.11
BSM appealed the findings of the LA with the NLRC. In the Decision12 dated February 29, 2016, the NLRC affirmed the ruling of the LA holding that Macahilas was entitled to payment of permanent and total disability benefits under the POEA-SEC and attorney's fees.13
BSM then filed a Petition for Certiorari14 with the CA. In the Decision15 dated August 31, 2017, the CA reversed and set aside the Decision of the NLRC. The CA held that appendicitis is not one of the occupational diseases listed under Section 32-A of the POEA-SEC. While there is a disputable presumption that an illness acquired on board is work-related, the seafarer must still show a reasonable connection between the nature of work on board the vessel and the illness contracted or aggravated. The CA held that Macahilas failed to prove this connection. The assessment of his physician, issued after a one-time consultation, did not provide an explanation how Macahilas's work caused or aggravated his appendicitis. Other than the allegations of stressful work conditions and unhealthy diet on board the vesssel, there was no credible medical evidence to support that his appendicitis was work-related.16
Anent the issuance of the medical certificate17 in March 2015, the same was issued for Macahilas's hernia. While Section 32-A of the POEA-SEC lists hernia as an occupational disease, the same must be proven to be immediately preceded by undue, or severe strain arising out of and in the course of employment, among other conditions.18 The CA held that Macahilas's hernia did not arise out of or in the course of his employment because his incisional hernia was generated during the appendectomy. The CA held that Macahilas's conditions of hernia and appendicitis were not work related. In fact, after repatriation, his appendicitis was immediately assessed not to be work related for which he was declared fit to work on March 12, 2014, well-within the 120-day period.19
Unsatisfied with the CA ruling, Macahilas filed the instant petition with this Court. He reiterates that there is a causal connection between his work and illnesses, particularly, the diagnosis of appendicitis, fistula and hernia. Macahilas points out that appendicitis, although not a listed occupational illness under the POEA-SEC, enjoys a disputable presumption of work-relatedness. To establish the probable work-connection of the illness, he described his strenuous working conditions and diet on board the vessel and his tasks as third engineer which he claims caused said illness or at least aggravated a pre-existing condition. In the same vein, Macahilas's other illness of hernia, which is a listed occupational illness under the POEA-SEC, was also caused or aggravated by his work environment. Macahilas stresses that he was asymptomatic before boarding the vessel and was declared fit to work in his Pre-Employment Medical Examination (PEME). Having experienced symptoms onboard the vessel, it logically follows that: his strenuous work on the vessel resulted in or aggravated his conditions. The company failed to dispute the work-relatedness of his appendicitis by simply relying on its physician's assessment stating that it was not work-related. BSM is also estopped from assailing the work-illness connection of his appendicitis and hernia because the company shouldered his medical costs. Moreover, Macahilas argues that he was unable to perform his customary work as third engineer for more than 120 or 240 days because he had been under treatment for at least 418 days. Despite the issuance of the fit to work assessment, the fact remains that his condition is deemed permanent and total for his inability to resume his customary work for a period of 120 days. Finally, Macahilas argues that the CA erred in deleting the award of attorney's fees. Article 2208 of the Civil Code of the Philippines entitles him to payment of attorney's fees because he was compelled to litigate his interests.20
BSM, in its Comment,21 argues that Macahilas's conditions are not work-related. First, he was repatriated for perforated appendicitis only, which was immediately assessed as not work-related by the company-designated physicians. Appendicitis is not even a listed occupational illness under the POEA-SEC. BSM emphasizes that it is incumbent on Macahilas to prove by substantial evidence that his illness was caused or aggravated by his employment. His arguments are mere insinuations and cannot even be corroborated by the single and belated assessment of his personal physician. BSM further argues that the assessment of the company-designated physician is more credible because its doctors have a more extensive knowledge of Macahilas's medical conditions. The fact that the company undertook to continue Macahilas's medical treatment after repatriation does not mean that they admit that his illness is work-related. It is very clear that Macahilas's illness was assessed by the company-designated physician as not work-related and he was declared, later on, as fit-to-work. Finally, awarding permanent and total disability benefits is not based on the measure of time. Although Macahilas was unable to return to work within 120 days from repatriation or that a fit-to-work assessment was issued beyond 240 days, this cannot mean that Macahilas's disability is permanent and total. It is the assessment of the doctor that is the measure of the degree of disability suffered by the seafarer. Once the company-designated physician has recommended a disability impediment grading within the 240-day period, the same is considered conclusive. In this case, the company-designated physician issued a "not work-related" assessment within 120 or 240 days.22
From the foregoing guidelines, We find that there is failure on the part of BSM to observe the mandatory period for issuance of a definitive assessment. Macahilas's medical condition is deemed total and permanent.
1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.49
Very truly yours, (Sgd.) MISAEL DOMINGO C. BATTUNG III Division Clerk of Court |
Endnotes:
1Rollo, pp. 31-63.
2 Penned by Associate Justice Romeo F. Barza, with the concurrence of Associate Justices Myra V. Garcia-Fernandez and Renato C. Francisco; id. at 13-24.
3 Id. at 469-470.
4 Id. at 471-493.
5 Id. at 37
6 Id. at 207.
7 Id. at 574.
8 Id. at 72.
9 Id. at 72-73.
10 Id. at 370-386.
11 Id. at 73.
12 Id. at 206-216.
13 Id. at 215.
14 Id. at 160-204.
15 Id. at 13-26.
16 Id. at 76-81.
17 Id. at 521.
18 Section 32-A. OCCUPATIONAL DISEASES
For an occupational disease and the resulting disability or death to be compensable, all of the following conditions must be satisfied:cralawred1. The seafarer's work must involve the risks described herein;19 Id. at 76-81.
2. The disease was contracted as a result of the seafarer's exposure to the described risks;
3. The disease was contracted within a period of exposure and under such other factors necessary to contract it; and
4. There was no notorious negligence on the part of the seafarer.
The following diseases are considered as occupational when contracted under working conditions involving the risks described herein: x x x x
19. Hernia. All of the following conditions must be met:
a. The hernia should be of recent origin;
b. Its appearance was accompanied by pain, discoloration and evidence of the tearing of the tissues;
c. The disease was immediately preceded by undue or severe strain arising out of and in the course of employment, a protrusion of mass should appear in the area immediately following the alleged strain.
20 Id. at 43-52.
21 Id. at 101-131.
22 Id. at 117-129.
23 Section 20(A)(4) of the POEA-SEC.
24Romano v. Magsaysay Maritime Corporation, 816 Phil. 194 (2017).
25 Rollo, p. 500.
26 Acute appendicitis, , citing Acute Appendicitis, (visited June 22, 2020).
27 Appendicitis. Overview, (visited June 19, 2020).
28 Supra note 25.
29 Acute Appendicitis, , (visited June 22, 2020).
30 Diagnosis, , (visited June 19, 2020).
31 What are the symptoms of appendicitis?, (visited June 19, 2020).
32Rollo, p. 574.
33 Id. at 813.
34 Id.
35 What causes appendicitis? (visited June 19, 2020).
36De Leon v. Maunlad Trans, Inc. Seacrest Associates, 805 Phil. 531, 541 (2017); DOHLE-PIDLMAN Manning Agency,Inc. v. Heirs Gazzingan, 760 Phil. 861 (2015).
37 Id. at 513-514.
38 Definition taken from (visited September 10, 2019).
39 Definition taken from (visited September 10, 2019).
40 LABOR CODE OF THE PHILIPPINES, Article 192(2) [renumbered Article 198(b)]; Implementing Rules and Regulations of the Labor Code of the Philippines, Rule X, Section 2; Elburg Shipmanagement Phils., Inc. v. Quiogue, Jr., 765 Phil 363 (2015).
41Jebsens Maritime, Inc., v. Mirasol, G.R. No. 213874, June 19, 2019.
42 Id.
43Rollo, p. 573.
44Elburg Shipmanagement Phils., Inc. v. Quiogue, Jr., 765 Phil 341, 358-359 (2015).
45 Id. at 363.
46 Id.
47Orient Hope Agencies, Inc., v. Jara, G.R. No. 204307, June 6 2018.
48 Id.
49 Id.
50 Art. 2208. In the absence of stipulation. Attorney's fees and expenses of litigation other than
judicial costs, cannot be recovered except:cralawredx x x x
(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;