SECOND DIVISION
G.R. No. 249567. September 29, 2021
HARTMAN CREW PHILS., (FORMERLY ASSOCIATED SHIPMANAGEMENT, INC.)* AND SEA GIANT SHIPMANAGEMENT, LTD.,** Petitioners, v. RANDY V. ACABADO, Respondent.
D E C I S I O N
INTING, J.:
Before the Court is a Petition for Review on Certiorari1 seeking the reversal of the Decision2 dated June 21, 2019 and the Resolution3 dated September 18, 2019 of the Court of Appeals (CA) in CA-G.R. SP No. 152789 which set aside the Decision4 dated May 30, 2017 and the Resolution5 dated July 27, 2017 of the National Labor Relations Commission (NLRC) in NLRC LAC No. (OFW-M)05-000328-17(4)/NLRC NCR Case No. OFW (M) 12-15046-16 and reinstated with modification the Labor Arbiter's (LA) Decision6 dated March 2, 2017.
WHEREFORE, premises considered, judgment is hereby rendered finding that respondents failed to properly assess and issue the disability grading of complainant's medical condition on or before the 240th day from his repatriation and his medical condition or disability thereby entitling complainant to total and permanent disability benefits.Petitioners, together with Gomez, elevated the case to the NLRC.22chanRoblesvirtualLawlibrary
Respondent Hartman Crew Philippines and individual respondent Alberto L. Gomez are hereby ordered to jointly and solidarily pay complainant Randy V. Acabado total and permanent disability benefits amounting to Sixty Thousand US Dollars (US$60,000.00) or its equivalent in Philippine currency at the time of payment.
Attorney's fees equivalent to ten percent (10%) of the judgment award is likewise hereby awarded.
SO ORDERED.21chanRoblesvirtualLawlibrary
WHEREFORE, judgment is hereby rendered ordering respondents Hartmann23 Crew Philippines and Alberto L. Gomez to pay, jointly and severally, complainant the amount of US$ 10,075.00 plus attorney's fees in the amount of US$1,007.50.The NLRC held that the Grade 10 disability assessment given by the company-designated physician should be the basis for the seafarer's claim for permanent total disability benefit because he was the one who handled Acabado's case since repatriation. It declared that the series of specialized treatments negate any claim that the evaluation of Dr. Alegre is biased in favor of the company. Meanwhile, it observed that the Philippine Orthopedic Center and the Ospital ng Makati did not declare Acabado as permanently and totally disabled.25chanRoblesvirtualLawlibrary
SO ORDERED.24chanRoblesvirtualLawlibrary
We SET ASIDE the NLRC Decision promulgated on 30 May 2017, and the Resolution promulgated on 27 July 2017. We REINSTATE with MODIFICATION the Decision of the Labor Arbiter dated 02 March 2017, thus: we ORDER the respondents Hartman Crew Philippines, and Sea Giant Shipmanagement to pay the petitioner Randy Verin Acabado the following sums: (1) US$60,000.00 as permanent total disability benefits; and (2) US$6,000.00 as attorney's fees. All the monetary awards are subject to interest at the rate of 6% per annum from the finality of this Decision, until the award is fully satisfied.The CA ruled that Acabado is conclusively presumed to be suffering from permanent and total disability because the company-designated physician did not issue a final and definite assessment of Acabado's rating within the 120-day or 240-day period. It declared that in the absence of a final and definite disability assessment by the company-designated physician, Acabado was entitled to US$60,000.00 as permanent and total disability benefits, plus attorney's fees.29chanRoblesvirtualLawlibrary
IT IS SO ORDERED.28chanRoblesvirtualLawlibrary
According to petitioners, the company-designated physician declared on January 16, 2016 that Acabado's injury corresponded to a Grade 10 disability rating under POEA-SEC. They argue that the disability benefits of Acabado cannot be determined on the mere number of days of treatment: the POEA-SEC does not measure disability in terms of the number of days but by disability grading only. They also pointed out that even Acabado's physician did not establish total and permanent disability but merely advised Acabado to undergo physical therapy sessions.33chanRoblesvirtualLawlibraryI.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FINDING THAT RESPONDENT IS ENTITLED TO TOTAL AND PERMANENT DISABILITY BENEFITSII.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN TOTALLY DISREGARDING THE DECLARATION OF THE COMPANY-DESIGNATED PHYSICIANIII.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FINDING THAT RESPONDENT IS ENTITLED TO DISABILITY BENEFITS DESPITE BELATEDLY DISPUTING THE DECLARATION OF THE COMPANY-DESIGNATED PHYSICIANIV.
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERROR IN AWARDING RESPONDENT ATTORNEY'S FEES32chanRoblesvirtualLawlibrary
In summary, if there is a claim for total and permanent disability benefits by a seafarer, the following rules (rules) shall govern:Case law has also held that Elburg should be read as requiring the company-designated physician to issue a final and definitive disability assessment within 120 or 240 days from the date of the seafarer's repatriation. The initial 120 days within which the company-designated physician must issue a final and definitive disability assessment may be extended for another 120 days. The extended period, however, may only be availed of by the company-designated physician under justifiable circumstances.46chanRoblesvirtualLawlibrary
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;cralawlawlibrary
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;cralawlawlibrary
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; and
4. 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.45chanRoblesvirtualLawlibrary
Effect of failure to issue a final and definitive assessment. |
No final and definite medical findings within the period in the case. |
"January 16, 2016Even the March 31, 2016 Progress Report stated: "Physical therapy is continued. Follow-up is advised on 14 April 2016."55chanRoblesvirtualLawlibrary
MR. ALBERTO GOMEZ,
ASM PRESIDENT AND CEO
ASSOCIATED SHIP MANAGEMENT SERVICES, INC.
RE: RANDY ACABADO
WPR/GASCHEM RHONE/
August 29, 2015
13th Progress Report 140 days
Dear MR. ALBERTO GOMEZ:
Mr. RANDY ACABADO followed-up on 16 January 2016.
Subjective Complaints
Mild pain over the right knee.
Objective Complaints
Unremarkable surgical incisions over the right knee.
No tenderness, no swelling, no atrophy.
Range of motion of right knee is functional.
Assessment
Meniscal Tear, Right
S/P Meniscectomy
Plans
Physiotherapy is continued
Follow-up is advised on 04 February 2016.
Thank you very much.
(signed)
NATALIO G. ALEGRE II, M.D.
Attending Physician54chanRoblesvirtualLawlibrary
Endnotes:
* Referred to as "Hartmann Crew Philippines, Inc. (formerly Associated Ship Management Services, Inc.)" in some parts of the rollo (see rollo, pp. 41 and 469).
** Referred to as "Seagiant Shipmanagement" (see rollo, p. 646).
1 Rollo, Vol. I, pp. 3-40.
2 Id. at 44-54; penned by Associate Justice Nina G. Antonio-Valenzuela, with Associate Justices Ricardo R. Rosario (now a Member of the Court) and Perpetua T. Atal-Paño, concurring.
3 Id. at 56-57.
4 Id. at 311-319; penned by Presiding Commissioner Gregorio O. Bilog, III, with Commissioner Dominador B. Medroso, Jr., concurring; Commissioner Erlinda T. Agus, on leave.
5 Id. at 267-268.
6 Id. at 488-524; penned by Labor Arbiter Joel A. Allones.
7 Id. at 45.
8 See Contract of Employment dated March 4, 2015, rollo, Vol. II, p. 646.
9 Id. at 661.
10 Rollo, Vol. I, pp. 45-46.
11 See Operation Sheet dated September 16, 2015, rollo, Vol. II, p. 671.
12 Id. at 690.
13 See Clinical Abstract dated January 13, 2016, id at 691. See also Clinical Abstract dated January 17, 2016, id. at 692.
14 See Clinical Abstract dated January 19, 2016, id. at 693.
15 Rollo, Vol. I, p. 46.
16 Rollo, Vol. II, p. 669.
17 Id. at 682.
18 Rollo, Vol. I, pp. 46-47.
19 Id. at 47.
20 Rollo, Vol. I, pp. 487-524.
21 Id. at 524.
22 Rollo, Vol. I, p. 48.
23 Spelled as "Hartman" in other parts of the records.
24 Rollo, Vol. I, p. 319.
25 Id. at 316-318.
26 Id. at 287-309.
27 Id. at 267-268.
28 Id. at 53.
29 Id. at 52-53.
30 Id. at 63-74.
31 Id. at 56-57.
32 Id. at 10.
33 Id. at 12-20.
34 Id. at 25.
35 Id. at 36.
36 Rollo, Vol. II, pp. 730-768.
37 Id. at 758.
38 Id. at 781-789.
39 Id. at 772-779.
40 Pastrana v. Bahia Shipping Services, G.R. No. 227419, June 10, 2020, citing Fuji Television Network, Inc. v. Espiritu, 749 Phil. 388, 415 (2014).
41 Magsaysay Maritime Corp. v. Buico, G.R. No. 230901, December 5, 2019, citing Magsaysay Mol Marine, Inc., et al. v. Atraje, 836 Phil. 1061, 1074 (2018).
42 The Heirs of the Late Delfin Dela Cruz, et al. v. Phil. Transmarine Carriers, Inc., et al., 758 Phil. 382, 390 (2015), citing Asian Terminals, Inc. v. Simon Enterprises, Inc., 705 Phil. 83 (2013).
43 Pastrana v. Bahia Shipping Services, supra note 40.
44 765 Phil. 341 (2015).
45 Id. at 362-363.
46 Pastrana v. Bahia Shipping Services, supra note 40.
47 Id.
48 Id.
49 Hernandez v. Magsaysay Maritime Corporation, et al., 824 Phil. 552, 560 (2018).
50 Pastrana v. Bahia Shipping Services, supra note 40.
51 Abundo v. Magsaysay Maritime Corp., G.R. No. 222348, November 20, 2019.
52 Id., citing Sunit v. OSM Maritime Services, Inc., et al., 806 Phil. 505, 519 (2017).
53 Rollo, Vol. I, p. 12.
54 Rollo, Vol. II, p. 682.
55 Id. at 690.
56 Abundo v. Magsaysay Maritime Corp., supra note 51, citing Belchem Philippines, Inc./United Philippine Lines, et al. v. Zafra, Jr., 759 Phil. 527 (2015).
57 Id., citing Carcedo v. Maine Marine Philippines, Inc. et al., 758 Phil. 166, 184 (2015) further citing Libang, Jr. v. Indochina Ship Management, Inc., et al., 743 Phil. 286, 300 (2014).
58 Article 2208 of the Civil Code provides:
chanroblesvirtuallawlibraryArticle 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:59 See Astra Marine International, Inc. v. Malvas, G.R. No. 250299 (Notice) February 3, 2020; See also Jebsens Maritime, Inc. v. Pasamba, G.R. No. 220904, September 25, 2019 and Teekay Shipping Phils., Inc. v. Mateo, G.R. No. 243258 (Notice), January 7, 2019.cralawredlibrary
chanroblesvirtuallawlibrary(1) When exemplary damages are awarded;In all cases, the attorney's fees and expenses of litigation must be reasonable.
(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 plaintiff's 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.