THIRD DIVISION
[G.R. No. 191848. July 2, 2014.]
MARLO C. BALUNGAY, petitioner, vs. INTERORIENT MARITIME ENT., INC., MS. JASMIN P. ARBOLEDA, AND EURO TANKER, respondent.
DECISION
Sirs/Mesdames:
Please take notice that the Court, Third Division, issued a Resolution dated July 2, 2014,which reads as follows:
"G.R. No. 191848 (Marlo C. Balungay, vs. Interorient Maritime Ent., Inc., Ms. Jasmin P. Arboleda, and Euro Tanker). — Before us is a petition 1 filed by Marlo C. Balungay praying that this court reinstate the Labor Arbiter's October 25, 2007 decision that awarded him with permanent disability compensation of US$60,000.00 and 10% attorney's fees. 2
On January 20, 2007, respondent Interorient Maritime Enterprises, Inc., on behalf of its foreign principal, hired then 28 years old 3 Marlo C. Balungay to work on board the vessel, MT Esmeralda. The contract was for 12 months with basic monthly salary of US$385.00. 4 Marlo joined the vessel by January 25, 2007. 5
On March 24, 2007, Marlo was working on board the vessel in Turkey. An acetylene tank fell on his right hand, causing a fracture in his right distal (phalanx). 6 He was given first aid by the vessel's Second Officer and was rushed to a hospital in Turkey. The doctor described his condition as "[r]ight hand 1-finger distal phalanx of distal crush injury/subtotal amputation." 7
On April 3, 2007, Marlo was repatriated. 8 He was examined by the company-designated physician, Dr. Donna Delia S. Urlanda. She referred Marlo to Dr. Francisco O. Detabali, an orthopaedic surgeon at Delos Santos Medical Center. 9
On April 11, 2007, Dr. Detabali issued the following medical certificate:
. . . Mr. Marlo Balungay consulted today with a fracture of the distal phalanx right hand secondary to crushing injury, S/P orif March 24, 2007. Presently there are areas of necrosis on the tip of the thumb with decrease to absent of sensation. The fixation was inadequate. There is no purchase on the proximal fragment. I suggest removal of suture. (I'll do it today), observe for progression of necrosis. Removal of pin next week, if fracture is malaligned or ununited, an amputation or reconstruction is appropriate. 10
On April 20, 2007, Marlo filed a complaint with the National Labor Relations Commission (NLRC) regional arbitration branch. He alleged that he had become unfit for sea duty due to his rapidly deteriorating physical condition. 11 Consequently, he sought to recover permanent disability compensation; sick wages for 120 days; actual, moral, and exemplary damages; attorney's fees; and other benefits provided by law. 12
In their position paper, respondents countered that Marlo was not entitled to disability benefits given that he was still undergoing treatment with Dr. Urlanda. 13 They submitted Dr. Urlanda's medical report dated May 21, 2007 that advised Marlo to continue the physical therapy program and to return for an evaluation on June 5, 2007. 14
Respondents explained that the sickness allowance claims is meant for those repatriated for medical reasons and require further medical attention. The claims is "meant to give sustenance to the seafarer and his family while [he] is undergoing treatment," 15 subject to the 120-day limit. Marlo was undergoing treatment for only about one and a half months since he had started treatment with the company doctor on April 10, 2007; thus, his claim for a 120-day sickness allowance was unwarranted. 16 Respondents also submitted that there was no ill motive on their part to warrant the award of moral and exemplary damages. 17
In reply, Marlo referred to the medical findings of orthopaedic surgeon Dr. Venancio P. Garduce, Jr., with the medical certificate stating that his disability was Grade 1. 18 The June 25, 2007 medical certificate stated that complainant had "thumb injury (distal thumb amputation)" 19 with "moderate pain and numbness at the tip of the thumb but with good [illegible] & function. Disability grade is 1." 20
Marlo prayed for US$60,000.00 as permanent disability compensation, US$1,540.00 as sick wages for 120 days, P4,661.60 as actual damages, P200,000.00 as moral damages, P200,000.00 as exemplary damages, and attorney's fees equivalent to 10% of the judgment award. 21TDcEaH
The Labor Arbiter, 22 by decision dated October 25, 2007, ordered respondents to pay Marlo permanent disability benefits of US$60,000.00 and 10% attorney's fees or US$6,000.00. 23
The National Labor Relations Commission reversed the Labor Arbiter's decision 24 on February 27, 2009 25 and dismissed the complaint for lack of merit. 26
The Commission discussed that the complaint was prematurely filed and Dr. Venancio P. Garduce, Jr.'s disability assessment of Grade 1 wanting of factual support. 27 It also discussed the newly discovered evidence raised in the supplemental appeal that Marlo had been employed by another manning agency, as processed by the Philippine Overseas Employment Administration (POEA) on December 18, 2007. 28
The Commission, in a resolution dated April 30, 2009, denied reconsideration for lack of merit. 29 Marlo went up to the Court of Appeals via Rule 65.
On October 8, 2009, the Court of Appeals 30 partially granted Marlo's petition for certiorari. It affirmed the Commission's decision with the modification ordering respondents to pay Marlo sickness allowance equivalent to one and a half month's basic wage. 31 The court denied reconsideration.
Hence, this petition was filed raising the sole issue of whether petitioner is entitled to permanent disability benefits.
Petitioner submits that his injury remained despite medical treatment for more than 120 days. 32 He claims he lost the power to lift and grip. 33 He argues that in compensation cases, "what is compensated by law is the seafarer's los[s] of capacity to seek further sea employment and the opportunity to earn an income." 34
Petitioner argues that findings of fact by labor arbiters are respected and even accorded finality on appeal, provided there are no irregularities and grave errors by the arbiter. 35 He emphasizes that the National Labor Relations Commission's reversal was a split decision as Commissioner Nieves Vivar-De Castro agreed with the Labor Arbiter in her dissent. 36
Petitioner adds that the National Labor Relations Commission erred in entertaining respondents' supplemental appeal submitting a two-month employment contract entered by petitioner with another company, as this supplemental appeal was filed beyond the reglementary period. 37
In any case, petitioner contends that this contract was only for two months to help alleviate his financial problems as he had no source of income. 38 He submits that this should not prevent him from recovering permanent disability compensation for his injury that was not cured despite medical treatment for more than 120 days. 39 Petitioner adds that he was repatriated as he was not capable of strenuous activities on board. 40
Petitioner argues that there have been cases when this court sustained the medical findings of an independent medical specialist. 41 He adds that the POEA Standard Employment Contract, "designed primarily for the protection and benefit of Filipino seamen," 42 does not provide that only the company-designated doctor can assess seafarers. 43 Petitioner was treated by independent medical specialist Dr. Venancio P. Garduce, Jr., who confirmed that petitioner was "suffering from Disability Grade of 1." 44
In their comment, respondents' counter-statement of facts discussed that "petitioner figured in an accident wherein his right thumb was accidentally hit by a wooden object." 45
Respondents argue that petitioner is estopped from claiming the amount of US$60,000.00 since his motion for reconsideration with the Court of Appeals did not raise this issue but only prayed for US$10,075.00. 46 This US$10,075.00 was prayed for "as his compensation for his fracture injury in his right thumb which is classified under the POEA Standard Employment Contract as Disability Grade 10." 47 They submit that petitioner can no longer revive in this petition the issue on his alleged "right to total and permanent disability benefits." 48
In any case, the assailed Court of Appeals' decision dismissing the claim for total and permanent disability benefits has basis in facts and law. 49 Respondents emphasize that under Section 32 of the POEA contract, a Grade 1 disability for injuries involving the thumbs/fingers/hand is justified only when there is "total loss of use of both hands or amputation of both hands at wrist joints or above." 50 Marlo's injury was on his right thumb only, and this injury did not require amputation. 51
Respondents submit that petitioner was redeployed at least twice after his injury. However, his petition still made allegations such as the injury was "never resolved," 52 he lost his "lifting and gripping power," 53 and other similar claims. Thus, respondents cite Rule 10.01 of the Code of Professional Responsibility mandating lawyers not to do any falsehood. 54
Respondents reiterate that during the pendency of the National Labor Relations Commission's proceedings, petitioner was deployed as an able seafarer on January 10, 2008 for two months. 55 He was redeployed by another manning company on July 23, 2008, this time for nine months. 56 Respondents further submit that these re-deployments make it unnecessary to give weight to the opinion of petitioner's private doctor on petitioner's degree of disability. 57
On petitioner's insistence that respondents' supplemental appeal was filed out of time and should not have been considered by the Commission, respondents argue that "strict rules of evidence are not applicable in claims for compensation." 58
In any event, respondents argue that this issue was mooted by the petition in addressing the allegation on subsequent employment. The petition admitted the employment but justified that it was only temporary, with petitioner being eventually repatriated. 59 He was deployed again after, this time for a nine-month period. 60
Respondents also contend that petitioner cannot rely on Crystal Shipping, Inc. v. Natividad61 and other related cases as petitioner's complaint was prematurely filed, and he abandoned his medical treatment. Thus, the 120-day ruling in these cases does not apply. 62
Lastly, respondents submit that petitioner's invocation of a liberal application of the law in favor of labor is futile as "the constitutional policy to provide full protection to labor is not meant to be a sword to oppress employers." 63
Petitioner filed a reply reiterating his arguments, and this court noted his reply. 64aSHAIC
This court resolves to deny the petition.
The Labor Code 65 enumerates the disabilities considered as total and permanent, and this includes "temporary total disability lasting continuously for more than 120 days, except as otherwise provided for in the Rules." 66
Petitioner admitted that his injury was not total and permanent when he limited the prayer in his motion for reconsideration for a judgment in the sum of "US$10,075.00 as his compensation for his fracture injury in his right thumb which is classified under the POEA Standard Employment Contract as Disability Grade 10." 67
This is a clear abandonment of petitioner's original claim that his right thumb injury was total and permanent, meriting disability benefits in the amount of US$60,000.00. The petition before this court reviving his original theory consequently contradicts his arguments with the Court of Appeals, and should, thus, fail.
Addressing petitioner's arguments anew would reach the same result.
Petitioner insists that his injury remained despite medical treatment of more than 120 days, 68 and the law compensates the seafarer's "los[s] of capacity to seek further sea employment and the opportunity to earn an income." 69
Surprisingly, petitioner also admits that he was redeployed by another manning company under a two-month employment contract. 70 He cites cases such as Crystal Shipping, Inc. v. Natividad71 in arguing that redeployment does not prevent his claim for permanent disability compensation as his injury was "never resolved despite medical treatment for more than 120 days." 72
Crystal Shipping ruled that "[t]he law does not require that the illness should be incurable [as] [w]hat is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability. 73
This ruling does not apply to petitioner's case.
In Crystal Shipping, the seafarer was repatriated on August 18, 1998 because he was diagnosed with "swelling neck and lymphatic glands right side in neck." 74 He then underwent medical treatments and sought a second opinion. On June 25, 1999, or almost 10 months later, petitioner offered respondent seafarer an amount as disability benefits, but he rejected this amount and filed his complaint. 75
In petitioner's case, he was repatriated on April 3, 2007 and was examined by the company-designated physician. On April 20, 2007, within the same month and before the lapse of 120 days, he immediately filed a complaint with the regional arbitration branch for permanent disability compensation and sick wages for 120 days, among others. 76 In fact, his complaint affidavit was dated and notarized on April 8, 2007, just five days from his repatriation. 77
Petitioner's complaint claiming permanent disability benefits was clearly premature.
Petitioner's claim was further negated when respondents raised that he was redeployed at least twice after his injury — on January 10, 2008 for a two-month period, and on July 23, 2008 for a nine-month period. 78 Petitioner did not deny these employment contracts in his reply. His reply merely reiterated that findings of fact by labor arbiters are highly, respected, 79 and the labor arbiter correctly awarded him with permanent and total disability benefits based on his independent doctor's opinion that his disability was classified as Grade 1. 80
Respondents only discovered these subsequent employment contracts during the pendency of their appeal with the National Labor Relations Commission, prompting them to file a supplemental appeal. 81 Thus, petitioner cannot insist on the conclusiveness of factual findings by the Labor Arbiter when this was overturned by both the Commission and the Court of Appeals based on newly discovered evidence. This court also agrees with respondents that petitioner's argument against the belated filing of a supplemental appeal raising the fact of his redeployment was mooted when he addressed this issue in his petition.
Neither can petitioner rely on the existence of a dissent by one of the commissioners. This commissioner subsequently concurred when the Commission denied petitioner's motion for reconsideration by resolution dated April 30, 2009. 82
The case was also elevated to the Court of Appeals, and the court's dismissal of petitioner's claim for total and permanent disability benefits had basis in both facts and law.
The POEA Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels governs petitioner's claims. These guidelines were amended in recent years, 83 but the year 2000 version was applicable when petitioner filed his complaint in 2004. Paragraphs 3 and 6 of Section 20 (B) read:
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:
xxx xxx xxx
3. Upon sign-off from the vessel for medical treatment, the seafarer 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.
xxx xxx xxx
6. In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of this Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted.84 (Emphasis supplied)
First, the schedule of disabilities under Section 32 shows that only "total loss of use of both hands or amputation of both hands at wrist joints or above" is classified as a Grade 1 disability for injuries involving thumbs, fingers, and hands. 85 Petitioner does not deny that his injury was on his right thumb only. The Commission's decision also reproduced the medical certificates and discussed that amputation was ruled out;
We have reviewed at length the three medical certificates and the common thread found is that complainant-appellee sustained thumb injury. While amputation of the thumb had been considered, the same was subsequently ruled out after treatment and evaluation.
xxx xxx xxx
At the risk of being repetitious, let it be underscored that complainant-appellee's right thumb has not been amputated, at most, it has been injured.
xxx xxx xxx
It is clear from the records of this case, that complainant-appellee has been furnished with copies of both the Appeal Memorandum and the Supplemental Appeal. He, however, did not flee [sic] any Comment or Opposition. His silence on the matter is deemed by Us as admission of the verity of the document adduced by respondents-appellants that he [had] been rehired and such fact is a clear indicator that he is not suffering from total or permanent disability. 86
Second, permanent and total disability means "disablement of an employee to earn wages in the same kind of work or work of a similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment can do." 87 The recent case of Alpha Ship Management Corporation v. Calo88 discussed that:
An employee's disability becomes permanent and total when so declared by the company-designated physician, or, in case of absence of such a declaration either of fitness or permanent total disability, upon the lapse of the 120- or 240-day treatment period, while the employee's disability continues and he is unable to engage in gainful employment during such period, and the company-designated physician fails to arrive at a definite assessment of the employee's fitness or disability. 89 (Emphasis supplied) IcDCaS
The Court of Appeals discussed that "just six (6) months after filing [his] complaint and without completion of the medical treatment and rehabilitation for his thumb injury, petitioner was hired as [a]ble [s]eaman to work on-board the vessel of another employer." 90 Respondents also alleged that petitioner was redeployed at least twice after his injury, 91 and petitioner never denied this in his reply.
All these reasons negate Dr. Venancio P. Garduce, Jr.'s medical opinion that petitioner was suffering from a disability Grade of 1. 92 Thus, petitioner's argument on the evidentiary weight of an independent medical specialist's opinion compared with a company-designated doctor's opinion in complaints for disability benefits 93 does not warrant credence and does not need to be entertained in this case.
Lastly, the Court of Appeals correctly applied paragraph 3 of the POEA Standand Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean Going Vessels in awarding petitioner with sickness allowance.
Petitioner's repatriation on April 3, 2004 for medical reasons is undisputed. Even if he prematurely filed his complaint before his recommended treatment could be completed, he was nevertheless entitled to sickness allowance for the time that he was undergoing treatment and could not find gainful employment. 94 Respondents also did not address this award of sickness allowance in its comment. Thus, this court finds no reason to disturb this award in favor of petitioner.
WHEREFORE, the petition is DENIED. (Bersamin, J., designated Acting Member in view of the vacancy in the Third Division per Special Order No. 1691-P dated May 22, 2014.)
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1. The petition was filed pursuant to Rule 45 of the Rules of Court.
2. Rollo, p. 39.
3. CA records, p. 36. The medical certificate dated June 25, 2007 of Dr. Venancio P. Garduce, Jr., reproduced in the National Labor Relations Commission decision states that Marlo was 28 years old.
4. Rollo, pp. 8, 35, and 61.
5. Id. at 8. The petition alleged that petitioner joined the vessel on January 27, 2007.
6. Id. at pp. 8-9, 35; CA records, pp. 31 and 26.
7. Rollo, pp. 9 and 35.
8. Id. at 9.
9. Id. at 9 and 35.
10. Id. at 9, 35-36; CA records, p. 35.
11. Rollo, p. 36; CA records, p. 46.
12. Rollo, p. 36; CA records, pp. 24 and 46.
13. Rollo, p. 36; CA records, pp. 61 and 69.
14. CA records, p. 65.
15. Id. at 71.
16. Rollo, p. 37; CA records, p. 72.
17. Rollo, p. 37; CA records, p. 73.
18. Rollo, p. 37; CA records, p. 89.
19. CA records, p. 98.
20. Id.
21. Id. at 95-96.
22. Labor Arbiter Florentino R. Darlucio.
23. Rollo, p. 39; CA records, p. 28.
24. National Labor Relations Commission Sixth Division, penned by Commissioner Isabel G. Panganiban-Ortiguerra and concurred in by Presiding Commissioner Benedicto R. Palacol. Commissioner Nieves Vivar-De Castro dissented with two sentences: "I am in favor of complainant. The decision of the Labor Arbiter is correct in all aspects." (CA records, pp. 30-40)
25. CA records, p. 40.
26. Id. at 39.
27. Id. at 37.
28. Id. at 38.
29. Id. at 43, penned by Commissioner Isabel G. Panganiban-Ortiguerra and concurred in by Presiding Commissioner Benedicto R. Palacol and Commissioner Nieves Vivar-De Castro.
30. This petition was penned by Associate Justice Martin S. Villarama, Jr., and concurred in by Associate Justice Magdangal M. De Leon and Associate Justice Ricardo R. Rosario.
31. Rollo, p. 46.
32. Id. at 14.
33. Id.
34. Id.
35. Id. at 16.
36. Id.
37. Id. at 18.
38. Id. at 19.
39. Id. at 20, citing Crystal Shipping, Inc. v Natividad, 510 Phil. 332 (2005) [Per J. Quisumbing, First Division].
40. Rollo, p. 20.
41. Id. at 21, citing HFS Philippines, Inc. v. Pilar, 603 Phil. 309 (2009) [Per J. Corona, First Division].
42. Rollo, p. 28, citing Wallem Maritime Services, Inc. v. NLRC, 376 Phil. 738 (1999) [Per J. Bellosillo, Second Division].
43. Rollo, p. 25.
44. Id. at 21.
45. Id. at 61.
46. Id. at 65.
47. Id. at 64.
48. Id. at 66.
49. Id.
50. Id. at 67.
51. Id.
52. Id. at 20.
53. Id. at 14.
54. Id. at 69.
55. Id. at 70.
56. Id.
57. Id. at 76.
58. Id. at 71, citing NFD International Manning Agents, Inc. v. NLRC, 336 Phil. 466 (1997) [Per J. Hermosisima, Jr., First Division].
59. Rollo, p. 73.
60. Id. at 74.
61. 510 Phil. 332 (2005) [Per J. Quisumbing, First Division].
62. Rollo, p. 75.
63. Id. at 77, citing Magsaysay v. NLRC, G.R. No. 186180, March 22, 2010, 616 SCRA 362 [Per J. Brion, Second Division].
64. Rollo, p. 104.
65. Pres. Decree No. 442, as amended (1974).
66. LABOR CODE, art. 192 (c) (1).
67. CA records, p. 304.
68. Rollo, p. 14.
69. Id.
70. Id. at 19.
71. 510 Phil. 332 (2005) [Per J. Quisumbing, First Division].
72. Rollo, p. 20, petition.
73. Crystal Shipping, Inc. v. Natividad, 510 Phil. 332, 341 (2005) [Per J. Quisumbing, First Division], citing Government Service Insurance System v. Cadiz, 453 Phil. 384, 389 (2003) [Per J. Ynares-Santiago, First Division].
74. Crystal Shipping, Inc. v. Natividad, 510 Phil 332, 335 [Per J. Quisumbing, First Division].
75. ld. at 336.
76. Rollo, p. 36; CA records, p. 46.
77. CA records, pp. 45-46.
78. Rollo, p. 70.
79. Id. at 91-92.
80. Id. at 93-94.
81. Id. at 62.
82. CA records, p. 43.
83. Amended Philippine Overseas Employment Administration contract <http://www.poea.gov.ph/mcs/MC%202010/MC-10-2010.pdf>.
84. POEA Department Order No. 4, series of 2000, May 31, 2000.
85. POEA Department Order No. 4, series of 2000, May 31, 2000, sec. 32.
86. CA records, pp. 37-39.
87. Esguerra v. United Philippines Lines, Inc., G.R. No. 199932, July 3, 2013, p. 8 <http://sc.judiciary.gov.ph/jurisprudence/2013/ju1y2013/199932.pdf> [Per J. Reyes, First Division], citing Seagull Maritime Corp. v. Dee, 548 Phil. 660, 671 (2007) [Per J. Corona, First Division].
88. Alpha Ship Management Corporation v. Calo, G.R. No. 192034, January 13, 2014 <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/january2014/192034.pdf> [Per J. Del Castillo, Second Division].
89. Id. at 1.
90. Rollo, p. 46.
91. Id. at 70.
92. Id. at 21.
93. See Andrada v. Agemar Manning Agency, Inc., G.R. No. 194758, October 24, 2012, 684 SCRA 587, 596-597 [Per J. Mendoza, Third Division].
94. Rollo, p. 45.