Cabatingan v. CF Sharp Crew Management, Inc.

THIRD DIVISION

[G.R. No. 204837. May 5, 2021.]

RONALD A. CABATINGAN, petitioner, vs. CF SHARP CREW MANAGEMENT, INC., REEDEREI CLAUS PETER OFFEN, MIGUEL ROCHA, and ROBERTO DAVANTES, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedMay 5, 2021, which reads as follows: HTcADC

"G.R. No. 204837 (RONALD A. CABATINGAN, petitioner, v. CF SHARP CREW MANAGEMENT, INC., REEDEREI CLAUS PETER OFFEN, MIGUEL ROCHA, and ROBERTO DAVANTES, respondents.) — A seafarer is entitled to total and permanent disability benefits if the company-designated physician did not issue a final and definite disability assessment within the required 120 or 240-day period.

This Court resolves a Petition for Review on Certiorari1 assailing the Decision 2 and Resolution 3 of the Court of Appeals, which found Ronald A. Cabatingan (Cabatingan) entitled only to partial disability benefits from CF Sharp Crew Management, Inc. (CF Sharp), its officers, and its foreign principal.

The Court of Appeals overturned the Decision 4 and Resolution 5 of the National Labor Relations Commission, which found that Cabatingan was not entitled to any benefits, contrary to the Labor Arbiter's Decision 6 finding that he was entitled to full permanent disability benefits.

CF Sharp is a manning agency. Miguel Rocha (Rocha) stood as its executive vice president and chief operating officer, while Roberto Davantes (Davantes) was its fleet manager. Reederei Claus Peter Offen (Reederei Claus) was CF Sharp's foreign principal. 7

On December 18, 2006, CF Sharp employed Cabatingan as an oiler on board M/V Maersk Jamestown. Cabatingan's engagement with CF Sharp was covered by an employment contract and a Collective Bargaining Agreement. 8 The Collective Bargaining Agreement contained provisions for disability compensation in case a seafarer suffered an injury as a result of an accident that occurred in the course of employment. 9

Cabatingan boarded the ship on November 14, 2009, after being declared fit to work in his pre-employment medical examination. 10

On March 7, 2010, Cabatingan slipped while on the ship, and he fell on his right heel and left hand. 11 In pain, Cabatingan was brought to a physician in Port Quilang, Malaysia, where it was found that his Achilles tendon had been torn. 12 Cabatingan was advised to take medicine and get two weeks of rest. Yet even after resting, the pain persisted, and he was again brought to another doctor in Walvis Bay, South Africa, who declared him unfit for work. 13

Cabatingan was thus repatriated on April 16, 2010 14 and he was referred to the company-designated physician, Dr. Antonio Pobre (Dr. Pobre), 15 an orthopedic surgeon. Dr. Pobre recommended that Cabatingan undergo surgery after the following diagnosis: "partial tear, Achilles tendon, right; trigger finger, 2nd digit, left hand[.]" 16

Cabatingan underwent surgery on May 5, 2010. 17 He then returned to Dr. Pobre for follow-up consultations and underwent physical therapy. 18

On September 21, 2010, Dr. Pobre issued an Interim Disability Assessment funding that Cabatingan's injury was classified as "Grade 12": 19

Post-operative rehabilitation revealed a slow but progressive recovery in the patient's right tendon of Achilles. He continued to complain of pain at the surgical site. As per my assessment, tendon repairs usually take longer time to recover back to normal strength. Intensive physical therapy and rehabilitation can bring back the ankle to normal strength in due time. For now, I would give the patient interim disability of grade 12, that is "tearing of the Achilles tendon resulting in impairment in active flexion and extension of the foot." 20

On January 11, 2011, Dr. Pobre issued his Final Disability Assessment finding Cabatingan to have a 15% degree of disability:

Based on the present physical findings, the patient condition will improve over time since tendon repairs usually take longer time to recover back to normal strength. Intensive physical therapy and rehabilitation can eventually improve the present condition of the ankle to close to normal strength. The equivalent degree of disability would be 15%, that is for the ankle joint stiffness or slight talipes equinus (up to 15 degrees). 21

On February 17, 2011, Dr. Pobre issued an Answer to Query, stating:

MR. RONALD CABATINGAN had partial tear of the right Tendon of Achilles on April 12, 2010 and had repair of the ruptured tendon of Achilles on May 05, 2010. Tendon repair usually takes time to heal and regain normal strength. Within 6-8 months, there is a possibility that the patient shall recover fully. By this time, the patient should have a re-evaluation of his right ankle. He should have regained normal strength of the repaired tendon of Achilles. Thus, the patient can be declared FIT TO WORK and resume normal sea duties.

I would be glad to have him back at my clinic and I could give a final assessment if the repaired tendon of Achilles has fully been restored. 22

However, Cabatingan no longer reported back to Dr. Pobre. 23 Instead, he consulted with a private orthopedic surgeon, Dr. Nicanor Escutin (Dr. Escutin), 24 who said that his injury totally rendered him unfit for sea duty and prevented him from working in any capacity as a seafarer. 25

Cabatingan thus demanded permanent total disability benefits. 26 CF Sharp refused, pointing out that Cabatingan failed to report to Dr. Pobre for reevaluation. 27 Thus, Cabatingan filed a Complaint for permanent total disability benefits, sickness allowance, damages, and attorney's fees. 28 CAIHTE

In a March 31, 2011 Decision, 29 the Labor Arbiter ruled in favor of Cabatingan, ordering CF Sharp and its co-respondents to pay him permanent total disability benefits. 30 Having considered the medical findings, 31 the Labor Arbiter found that Cabatingan could not have been guilty of medical abandonment, because Dr. Pobre did not require him to return for reevaluation. The Labor Arbiter also noted that Cabatingan's duties as oiler required dexterity and various movements, which he could no longer perform because of the injury, resulting in a loss of earning capacity. 32 The dispositive portion of the Decision reads:

WHEREFORE, premises above considered, judgment is hereby rendered ordering the respondents, jointly and severally, to pay complainant's permanent total disability benefits in accordance with the rate of compensation provided in the parties' existing Collective Bargaining Agreement (CBA), in the amount of One Hundred Twenty-Five Thousand U.S. dollars (USD125,000.00), plus ten percent (10%[)] of the total award as attorney's fees.

All other claims are hereby denied for without (sic) factual and legal basis.

SO ORDERED. 33

In its August 16, 2011 Decision, 34 the National Labor Relations Commission reversed the Labor Arbiter's ruling. It held that Cabatingan failed to prove his entitlement to any disability benefits under the Collective Bargaining Agreement, which provided that compensation may be awarded only for injuries resulting from accidents. 35 It also ruled that since Cabatingan stopped reporting to Dr. Pobre, he himself prevented his condition from improving, foreclosing his chances of being declared fit to work. 36 Thus, it held that CF Sharp should not be made liable for something borne by Cabatingan's actions. 37 The dispositive portion of the Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered reversing and setting aside the Decision of the Labor Arbiter and DISMISSING the case for lack of merit.

SO ORDERED.38 (Emphasis in the original)

Cabatingan moved for reconsideration, but his Motion was denied in the National Labor Relations Commission's October 5, 2011 Resolution. 39

The Court of Appeals, in its August 30, 2012 Decision, 40 reversed the National Labor Relations Commission's ruling. It found that Cabatingan's work-related injury was an accident, entitling him to disability benefits under the Collective Bargaining Agreement. 41 However, relying on the company-designated physician's findings, it found that Cabatingan was not entitled to permanent total disability benefits, but only to the amount provided in the Collective Bargaining Agreement for a disability rate of 15%, or US$18,750.00. 42 It disposed of the case as follows:

WHEREFORE, the petition is partly granted. The Decision dated August 16, 2011 and Resolution dated October 5, 2011 of public respondent NLRC are nullified and set aside, and the labor arbiter's Decision dated March 31, 2011 is reinstated, subject to the modification that private respondents are ordered to pay petitioner the amount of US$18,750.00 as disability compensation in accordance with the provisions of the parties' Collective Bargaining Agreement, and the award of attorney's fees is deleted.

SO ORDERED. 43 (Emphasis in the original)

The Court of Appeals denied Cabatingan's Motion for Partial Reconsideration in its December 3, 2012 Resolution. 44

Hence, Cabatingan filed this Petition for Review 45 against CF Sharp, Rocha, Davantes, and Reederei Claus.

Petitioner argues that he is entitled to permanent total disability benefits. He assails the lower courts' sole reliance on Dr. Pobre's findings, which he insists are self-serving and flip-flopping. He points out that Dr. Pobre had already noted that his injury usually takes a longer time to recover and that renders him permanently unfit for sea service, but still diagnosed him fit for work. 46

Petitioner also argues for the application of the Labor Code provisions on disability, the Philippine Overseas Employment Administration Standard Employment Contract, and the Collective Bargaining Agreement. 47 He contends that he was declared by all his physicians to be permanently unfit for further sea service, thus entitling him to permanent total disability benefits under the Collective Bargaining Agreement. 48

Petitioner maintains that 240 days have passed without any declaration on his fitness to resume sea work. 49 He states that the disability assessment rate of 15% was issued 11 months from his injury, showing that he was incapacitated for more than 240 days. 50 He likewise argues that Dr. Pobre's statement that he might be declared fit to work was purely inchoate, subject to the full restoration of his Achilles tendon. 51 He notes that Dr. Pobre's assessment did not include the injuries on his left hand, which impaired his ability to perform his tasks. 52

Petitioner maintains that Dr. Escutin's diagnosis deserves more credence, saying that it is in line with the Department of Health's Revised Guidelines for Conducting Medical Fitness Examinations for Seafarers 53 because his injury has hampered his range of motion, prevented him from doing normal physical activities, and rendered him unfit for the job requirements and fitness standards of an oiler. 54

Petitioner's condition also falls under "loss of profession" under the Collective Bargaining Agreement, he says. 55 He argues that he cannot now earn wages in the same kind of work, or be employed for work "that he was trained for or accustomed to perform, or for any work which a person of his mentality or attainment can do." 56 He says he can no longer get gainful occupation without serious discomfort or pain and without material injury or danger to his life. 57 He adds he has failed to get gainful employment in 2 years and 10 months already. 58

Finally, petitioner insists on his claim for damages and attorney's fees, arguing that respondents are guilty of gross negligence for failing to give him proper medical attention, while he was on board the vessel. 59

Respondents filed their Comment, 60 arguing that the Court of Appeals committed no errors in limiting petitioner's disability assessment to 15%. They insist that aside from his self-serving statements, petitioner has not shown any substantial medical basis that he has been suffering from a Grade 1 disability. 61

Respondents maintain that an illness lasting more than 120 days is not necessarily a Grade 1 disability. They argue that the doctor's assessment prevails over the length of time the patient was under treatment. 62 They contend that it would be unjust, and would render the Collective Bargaining Agreement useless, if a seafarer with a curable injury, and will later be declared fit to work after 120 days, would be allowed to recover full permanent disability benefits. 63

Respondents also maintain that the medical findings of the company-designated physician should be upheld over petitioner's private physician, being the one most qualified to assess the seafarer's injury and degree of disability. 64 They then argue that Dr. Pobre has personal knowledge of Cabatingan's actual condition, 65 while Dr. Escutin only saw him on a single day, months after he had disembarked from the vessel. 66

Moreover, respondents claim that petitioner willfully forfeited his right to disability benefits when he abandoned his medical treatment. By doing so, respondents say, petitioner divested himself of the opportunity to be treated properly and be cured of his illness, and only has himself to blame if his medical condition worsens. 67

Finally, respondents argue that the demands for moral and exemplary damages and attorney's fees have no basis as they committed no bad faith toward petitioner. 68 aScITE

In his Reply, 69 petitioner argues the following: (1) the Court of Appeals should have based the award on the factual findings of the Labor Arbiter and not the National Labor Relations Commission; 70 (2) the physician chosen by the seafarer may contest the assessment of the company-designated physician; 71 and (3) the claims for damages and attorney's fees were warranted under the circumstances. 72

The sole issue in this case is whether or not petitioner Ronald A. Cabatingan is entitled to permanent total disability benefits.

We grant the Petition.

The disability benefits of seafarers are governed by law, contract, and medical findings. 73 The relevant laws are the Labor Code provisions for disability compensation and the Amended Rules on Employee Compensation. The governing contracts, on the other hand, consist of the seafarer's employment contact, any collective bargaining agreement between the parties, and the Philippine Overseas Employment Administration (POEA) Standard Employment Contract. 74

Pertinent here is Article 198 of the Labor Code, which states in part:

ARTICLE 198. [192] Permanent Total Disability. — . . .

xxx xxx xxx

(c) The following disabilities shall be deemed total and permanent:

(1) Temporary total disability lading continuously for more than one hundred twenty days, except as otherwise provided for in the Rules[.]

Rule X, Section 2 of the Amended Rules on Employee Compensation 75 provides that an injured seafarer is entitled to temporary total disability benefits for 120 days. However, this period may be extended to 240 days if the injury still requires medical attendance later:

RULE X

xxx xxx xxx

SECTION 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.

(b) After an employee has fully recovered from an illness as duly certified to by the attending physician the period covered by any relapse he suffers, or recurrence of his illness, which results in disability and is determined to be compensable, shall be considered independent of, and separate from, the period covered by the original disability. Such a period shall not be added to the period covered by his original disability in the computation of his income benefit for temporary total disability (TTD).

The POEA Standard Employment Contract, 76 which is deemed incorporated into every seafarer's employment contract, prescribes the procedure to recover the benefits in case of injury or illness. Section 20 states:

SECTION 20. Compensation and Benefits. —

A. 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

2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious denial, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of his disability has been established by the company designated physician.

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 entailed 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.

xxx xxx xxx

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.

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 his 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.

The disability shall be based solely on the disability gradings provided under Section 32 of this Contract, and shall not be measured or determined by the number of days a seafarer is under treatment or the number of days in which sickness allowance is paid. (Emphasis supplied)

These provisions were clarified in Vergara v. Hammonia Maritime Services, Inc., 77 where this Court held:

As these provisions operate, the seafarer, upon sign-off from his vessel, must report to the company-designated physician within three (3) days from arrival for diagnosis and treatment. For the duration of the treatment but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally unable to work. He receives his basic wage during this period until he is declared fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA Standard Employment Contract and by applicable Philippine laws. If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. The seaman may of course be declared fit to work at any time such declaration is justified by his medical condition. 78 (Emphasis in the original, citations omitted)

The company-designated physician is thus tasked to issue a disability assessment within 120 days, or if there is a need for further medical treatment, within 240 days. Should the company-designated physician fail to give an assessment within the period, the seafarer's disability will be deemed permanent and total. This process was outlined in Talaroc v. Arpaphil Shipping Corporation: 79

1. The company-designated physician must issue a final medical assessment on the seafarer's disability lading 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; 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. 80 (Citation omitted)

In C.F. Sharp Crew Management, Inc. v. Taok, 81 this Court enumerated the instances when a seafarer may claim total and permanent disability benefits. These include when the 240-day period had lapsed without the company-designated physician issuing any certification:

Based on this Court's pronouncements in Vergara, it is easily discernible that the 120-day or 240-day period and the obligations the law imposed on the employer are determinative of when a seafarer's cause of action for total and permanent disability may be considered to have arisen. Thus, a seafarer may pursue an action for total and permanent disability benefits if: (a) the company-designated physician failed to issue a declaration as to his fitness to engage in sea duty or disability even after the lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability, hence, justify an extension of the period to 240 days; (b) 240 days had lapsed without any certification being issued by the company-designated physician; (c) the compony-designated physician declared that he is fit for sea duty within the 120-day or 240-day period, as the case may be, but his physician of choice and the doctor chosen under Section 20-B (3) of the POEA-SEC are of a contrary opinion; (d) the company-designated physician acknowledged that he is partially permanently disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well; (e) the company-designated physician recognized that he is totally and permanently disabled but there is a dispute on the disability grading; (f) the company-designated physician determined that his medical condition is not compensable or work-related under the POEA-SEC but his doctor-of-choice and the third doctor selected under Section 20-B (3) of the POEA-SEC found otherwise and declared him unfit to work; (g) the company-designated physician declared him totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and (h) the company-designated physician declared him partially and permanently disabled within the 120-day or 240-day period but he remains incapacitated to perform his usual sea duties after the lapse of the said periods. 82 (Emphasis supplied)

Furthermore, the company-designated physician's assessment must not only be timely issued, but it must also be final and definitive. In Tamin v. Magsaysay Maritime Corporation, 83 this Court specified instances when the seafarer was granted permanent and total disability benefits because the final assessment lacked these requisites: DETACa

Jurisprudence is replete with cases where the Court struck down a company-designated physician's disability assessment for being belatedly issued, insufficient, or due to lack of finality.

In Kestrel Shipping Co., Inc. v. Munar, the Court explained that 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. Should he fail to do so and the seafarer's medical condition remains unresolved, the seafarer shall be deemed totally and permanently disabled.

Similarly, in Carcedo v. Maine Marine Phils., Inc., the seafarer's foot was wounded while on duty. When he was repatriated, the company-designated physician subjected him to a medical examination and subsequently issued a disability assessment stating that the seafarer merely had an "[i]mpediment disability grading of 8% loss of first toe and some of its metatarsal bone." Yet, the seafarer required further medical treatments and underwent amputation. The Court concluded that the company-designated physician's disability assessment was not definitive and, because he failed to issue a final assessment, the seafarer was certainly under permanent total disability.

Indubitably, the timely and definite declaration by the company-designated physician is an obligation, the abdication of which transforms the temporary total disability to permanent total disability, regardless of the disability grade.

In the instant case, the company-designated physician failed to give a definitive impediment rating on petitioner's disability beyond the extended temporary disability period of over 120 but not more than 240 days. The May 11, 2012 disability assessment issued by the company-designated physician was merely interim because petitioner still experienced recurring pain in his left hand and was required to undergo further therapy sessions even after May 11, 2012.

It also bears stressing that when petitioner sought for a grievance conference on July 27, 2012, the period of 240 days had already lapsed on July 24, 2012 without a final and definite disability assessment from the company-designated physician. At that point, the law steps in to consider petitioner's disability as permanent and total. By operation of law, petitioner's total and temporary disability lapsed into a total and permanent disability. Clearly then, the third-doctor-referral provision as provided in the POEA-SEC does not find application in the case at bar. Petitioner's cause of action arose when his disability went beyond the 240-day period without a final assessment having been issued by the company-designated physician. 84 (Emphasis supplied, citations omitted)

A stronger presumption of total and permanent disability arises if, in addition to the absence of a disability assessment within the required period, the seafarer has not fully recovered and is still incapacitated to perform their usual sea duties. 85 Entitlement to benefits is not just a question of the extent of the disability from a medical standpoint, but is also a matter of whether the disability has substantially affected the seafarer's earning capacity:

Furthermore, beyond the 240-day period, petitioner was still incapacitated to perform his usual sea duties as he was still feeling persistent pain in his injured hand and was advised to undergo further therapy sessions. Verily, in spite of the lapse of the extended 240-day period, petitioner was still incapacitated to perform his sea duties. Due to the injury he sustained, he could no longer perform his usual tasks as chief cook in any vessel. Thus, it resulted in his unemployment until this very day. As correctly held by the VA, this clearly indicates petitioner's total and permanent disability.

In Remigio v. NLRC, the Court held:

Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers. In Philippine Transmarine Carriers v. NLRC, seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by the company-accredited physician. The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC that 'disability should not be understood more on its medical significance but on the loss of earning capacity. Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do. It does not mean absolute helplessness.' It likewise cited Bejerano v. ECC, that in a disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity.

The law is clear on the total and permanent nature of petitioner's disability. As it were, petitioner was not able to perform his gainful occupation as chief cook and seafarer for more than 240 days. Given petitioner's loss of gripping power and inability to carry light objects, it is highly improbable that he would be employed as a chief cook again.

Jurisprudence has repeatedly held that disability is intimately related to one's earning capacity. It is the inability to substantially do all material acts necessary to the pursuit of an occupation he was trained for without any pain, discomfort, or danger in life. A total disability does not require that the seafarer be completely disabled or totally paralyzed. What is necessary is that the injury incapacitates an employee from pursuing and earning his or her usual work. A total disability is considered permanent if it lasts continuously for more than 120 days. 86 (Emphasis in the original, citations omitted)

In this case, petitioner was repatriated on April 16, 2010. The next day, Dr. Pobre, the company-designated physician, issued an Initial Medical Report recommending petitioner for surgery. 87 Petitioner did undergo surgery on May 5, 2010. 88

Because of the surgery, it is justifiable to extend the 120-day period to 240 days as it may be presumed that petitioner will require further medical assistance. This was affirmed in Dr. Pobre's Interim Disability Assessment dated September 21, 2010, where he stated that petitioner may need intensive physical therapy and rehabilitation:

Post-operative rehabilitation revealed a slow but progressive recovery in the patient's right tendon of Achilles. He continued to complain of pain at the surgical site. As per my assessment, tendon repairs usually take longer time to recover back to normal strength. Intensive physical therapy and rehabilitation can bring back the ankle to normal strength in due time. For now, I would give the patient interim disability of grade 12, that is "tearing of the Achilles tendon resulting in impairment in active flexion and extension of the foot." 89

This, however, means that Dr. Pobre was tasked to issue his final and definitive assessment within 240 days from petitioner's repatriation, or by December 12, 2010. However, Dr. Pobre issued the Final Disability Assessment only on January 11, 2011, on after 270 days from petitioner's repatriation.

Furthermore, while Dr. Pobre gave petitioner a disability assessment of 15% in the Final Disability Assessment, he still impliedly acknowledged that petitioner's ankle has not fully recovered to its normal strength. He indicated that intensive physical therapy and rehabilitation may be needed to bring back the ankle to close to normal strength. The language he used likewise lacked the finality and definitiveness required of a final disability assessment. Notably, he stated that the equivalent degree of disability "would be 15%":

Based on the present physical findings, the patient condition will improve over time since tendon repairs usually take longer time to recover back to normal strength. Intensive physical therapy and rehabilitation can eventually improve the present condition of the ankle to close to normal strength. The equivalent degree of disability would be 15%, that is for the ankle joint stiffness or slight talipes equinus (up to 15 degrees). 90

The lack of definitiveness is also evident in Dr. Pobre's Answer to Query dated February 17, 2011, in which he said that petitioner's full recovery is a mere possibility, subject to Dr. Pobre's reevaluation. The regaining of petitioner's normal strength and fitness to work is a mere surmise. The doctor even offered to give another final assessment to check if his ankle has fully healed. He stated:

MR. RONALD CABATINGAN had partial tear of the right Tendon of Achilles an April 12, 2010 and had repair of the ruptured tendon of Achilles on May 05, 2010. Tendon repair usually takes time to heal and regain normal strength. Within 6-8 months there is a possibility that the patient shall recover fully. By this time the patient should have a re-evaluation of his right ankle. He should have regained normal strength of the repaired tendon of Achilles. Thus, the patient can be declared FIT TO WORK and resume normal sea duties.

I would be glad to have him back at my clinic and I could give a final assessment if the repaired tendon of Achilles has been fully restored. 91

Thus, the Final Disability Assessment of petitioner's injury was not final, definite, or timely issued.

Respondents argue that Dr. Pobre's assessment should be given more weight than that of petitioner's private physician, Dr. Escutin. However, since Dr. Pobre's assessment was not definitive and was issued beyond the 240-day period, it is as if the company-designated physician made no assessment at all. In Esteva v. Wilhelmsen Smith Bell Manning, Inc., 92 this Court explained that if the seafarer was not informed of the disability assessment within the 240-day period, they cannot be faulted for filing a complaint for permanent disability after another physician confirmed their unfitness to work: HEITAD

Petitioner failed to signify his intention to resolve the conflicting assessments of the company-designated physician and his chosen physicians. After consulting Dr. Raymundo, he did not submit the conflicting findings to a third doctor. Instead, he immediately filed the claim for permanent disability benefits. Clearly, petitioner failed to comply with the mandatory rule on referral to a third doctor.

On the other hand, respondents also failed to discharge their duty. Petitioner claims that they did not inform him that the company-designated physician has already issued an assessment. Respondents did not dispute his contention that he was never furnished copies of the disability assessment, and that only after filing the Complaint did he become aware of it.

Absent a final, definite disability assessment from a company-designated physician, the mandatory rule on a third doctor referral will not apply here.

When petitioner learned of Dr. Cruz-Balbon's assessment during the submission of the position papers before the Labor Arbiter, the prescribed 240-day period had already lapsed. Based on the records, petitioner immediately submitted himself to the company-designated physician's examination on October 7, 2012. He later filed the Complaint after his chosen physician, Dr. Raymundo, had issued the Medical Certificate on July 19, 2013. It is unclear when petitioner filed the Complaint or when the position papers were received. Nonetheless, even if this Court will only consider the date of issuance of the last Medical Certificate, a total of 285 days had already lapsed from October 7, 2012 to July 19, 2013, which is beyond the period allowed by the law.

Hence, petitioner cannot be faulted for not referring the assessment to a third doctor at the time he filed his Complaint. There was no medical assessment from a company-designated physician to contest then as it had not been timely disclosed to him. Not only did respondents not refute that the findings were belatedly disclosed to petitioner, there is also nothing on record showing that they submitted the findings within the prescribed period. Hence, when the period had lapsed, there was a presumption that petitioner's disability is total and permanent.

It was also not contested that petitioner is still incapacitated to perform his usual duties and that his health has not regained normalcy. He has not been able to engage in any meaningful activity since 2012. He could not perform any manual labor, and had to continue undergoing physical therapy.

Thus, petitioner's failure to refer the assessment to a third doctor is not fatal to his disability claim. The mandatory rule on third doctor referral does not apply here. Consequently, the company-designated physician's findings cannot be given credence due to the presumption that petitioner's disability is total and permanent. 93 (Citations omitted)

Therefore, in accordance with the Collective Bargaining Agreement of the parties, petitioner is entitled to a total and permanent disability allowance of US$125,000.00. 94

However, this Court denies petitioner's prayer for damages, as there is no showing of any bad faith on respondents' part. Nonetheless, pursuant to Article 2208 95 of the Civil Code, we grant the prayer for attorney's fees, considering that this is an action for indemnity under workers' compensation and employers' liability laws. 96

WHEREFORE, the Petition is PARTIALLY GRANTED. The August 30, 2012 Decision and December 3, 2012 Resolution of the Court of Appeals in CA-G.R. SP No. 12-1529 are MODIFIED. Respondents CF Sharp Crew Management, Inc., Reederei Claus Peter Offen, Miguel Rocha, and Roberto Davantes are held solidarily liable to pay petitioner Ronald A. Cabatingan total and permanent disability benefits worth US$125,000.00, or its equivalent in Philippine Peso at the time of payment, plus 10% of it as attorney's fees.

SO ORDERED."

By authority of the Court:

(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 3-50.

2.Id. at 57-74. The August 30, 2012 Decision was penned by Associate Justice Fernanda Lampas Peralta and concurred in by Associate Justice, Francisco P. Acosta and Angelita A. Gacutan of the Tenth Division, Court of Appeals, Manila.

3.Id. at 78. The December 3, 2012 Resolution was penned by Associate Justice Fernanda Lampas Peralta and concurred in by Associate Justices Francisco P. Acosta and Angelita A. Gacutan of the Tenth Division, Court of Appeals, Manila.

4.Id. at 323-333. The August 16, 2011 Decision was penned by Commissioner Napoleon M. Menese, and concurred in by Presiding Commissioner Raul T. Aquino and Commissioner Teresita D. Castillon-Lora of the Second Division, National Labor Relations Commission, Quezon City.

5.Id. at 63. October 5, 2011 Resolution.

6.Id. at 245-252. The March 31, 2011 Decision was penned by Labor Arbiter Madjayran H. Ajan of the National Labor Relations Commission, National Capital Region, Arbitration Branch, Quezon City.

7.Id. at 58.

8.Id.

9.Id. at 194.

Section 19 of the Collective Bargaining Agreement states in part:

1. A Seafarer who suffers an injury as a result of an accident from any cause whatsoever whilst in the employment of the Managers/Owners, including accidents occurring whilst traveling 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 her/his sick pay (section and 14 and 15 above), a compensation as stated below:

Compensation:

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.

2. The disability suffered by the Seafarer shall be determined by a doctor appointed mutually by the Owners/Managers and the ITF, and the Owners/Managers should provide disability compensation to the Seafarer in accordance with the percentage specified in the table below which is appropriate to this ability. With any differences, including less than 10% disability, to be pro rata.

 

DEGREE OF DISABILITY RATE OF COMPENSATION

	RATINGS AB	OFFICERS & RATINGS
	AB & below	above AB
%	USD	USD
. . .	. . .	. . .
20	25,000	50,000
10	12,500	25,000

 

The compensation provided under this paragraph for 100% disability shall not exceed USD250,000 for Officers (and ratings above AB) and USD125,000 for ratings (AB and below), with lesser degrees of disability compensated for pro-rata.

3. Permanent Medical Unfitness — A Seafarer whose disability, in accordance with § 19 (1.) is assessed at 50% or more under the attached Annex 3 shall, for the purpose of this paragraph be regarded as permanently unfit for further sea service in any capacity and be entitled to 100% compensation, i.e., USD250,000.00 for Officers and Ratings above AB and USD125,000 for Ratings and below. Furthermore, any Seafarer assessed at less than 50% disability under the attached Annex 3 but certified as permanently unfit for further sea service in any capacity by a doctor appointed mutually by the Owners/Managers and the ITF, shall also be entitled to 100% compensation.

10.Id. at 58-59.

11.Id. at 59.

12.Id. at 325.

13.Id. at 248.

14.Id. at 59.

15.Id. at 4 and 570.

16.Id. at 59 and 210.

17.Id. at 59.

18.Id. at 215.

19.Id. at 59.

20.Id. at 216.

21.Id. at 217.

22.Id. at 218.

23.Id. at 61.

24.Id. at 59 and 249.

25.Id. at 59-60.

26.Id. at 61.

27.Id. at 248.

28.Id. at 61 and 245.

29.Id. at 245, 252.

30.Id. at 252.

31.Id. at 249.

32.Id. at 251.

33.Id. at 252.

34.Id. at 323-333.

35.Id. at 328.

36.Id. at 331.

37.Id. at 332.

38.Id.

39.Id. at 63.

40.Id. at 57-74.

41.Id. at 68.

42.Id. at 69-72.

43.Id. at 74.

44.Id. at 78.

45.Id. at 3-50.

46.Id. at 12.

47.Id. at 12 and 33.

48.Id. at 37-39.

49.Id. at 13.

50.Id. at 12.

51.Id. at 29-30.

52.Id. at 43.

53. DOH Administrative Order No. 2007-0025 (2007).

54.Rollo, pp. 40-41.

55.Id. at 39.

56.Id. at 42.

57.Id.

58.Id. at 39.

59.Id. at 43-45.

60.Id. at 569-597.

61.Id. at 575-578.

62.Id. at 578.

63.Id. at 579.

64.Id. at. 580.

65.Id. at 590.

66.Id. at 580, 582, and 589.

67.Id. at 581.

68.Id. at 591.

69.Id. at 599-621.

70.Id. at 608-615.

71.Id. at 615-617.

72.Id. at 618-620.

73.Esteva v. Wilhelmsen Smith Bell Manning, Inc., G.R. No. 225899, July 10, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showsdocs/1/65396> [Per J. Leonen, Third Division].

74.C.F. Sharp Crew Management, Inc. v. Taok, 691 Phil. 521 (2012) [Per. J. Reyes, Second Division].

75. Amended Rules on Employees' Compensation (Rev. 2014), July 21, 1987.

76. POEA Memorandum Circular No. 010-10 (2010), Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships.

77. 588 Phil. 895 (2008) [Per J. Brion, Second Division].

78.Id. at 912.

79. 817 Phil. 598 (2017) [Per J. Perlas-Bernabe, Second Division].

80.Id. at 612.

81. 691 Phil. 521 (2012) [Per J. Reyes, Second Division].

82.Id. at 538-539.

83. 794 Phil. 286 (2016) [Per J. Velasco, Jr., Third Division].

84.Id. at 300-302.

85.Id. at 302-303. See also Esteva v. Wilhelmsen Smith Bell Manning, Inc., G.R. No. 225899, July 10, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showsdocs/1/65396> [Per J. Leonen, Third Division].

86.Id.

87.Rollo, p. 209.

88.Id. at 59.

89.Id. at 216.

90.Id. at 217.

91.Id. at 218.

92. G.R. No. 225899, July 10, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65396> [Per J. Leonen, Third Division].

93.Id.

94.Rollo, p. 194.

95. 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 defendants 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 had 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 helper, 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.

96.See alsoToquero v. Crossworld Marine Services, Inc., G.R. No. 213482, June 26, 2019, <https://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/65333> [Per J. Leonen, Third Division].