Dolphin Ship Management, Inc. v. Viray

FIRST DIVISION

[G.R. No. 243109. October 6, 2021.]

DOLPHIN SHIP MANAGEMENT, INC. [NOW TDG CREW MANAGEMENT, INC.] AND/OR DISNEY CRUISE LINE, AND/OR MARCELO R. RANESES, petitioners, vs. ANNIE ROSE T. VIRAY, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution datedOctober 6, 2021which reads as follows:

"G.R. No. 243109(Dolphin Ship Management, Inc. [now TDG Crew Management, Inc.] and/or Disney Cruise Line, and/or Marcelo R. Raneses v. Annie Rose T. Viray). — This Petition for Review on Certiorari1 seeks to annul the Court of Appeals' (CA) Decision 2 dated April 25, 2018, and Resolution 3 dated November 12, 2018 in CA-G.R. SP No. 139774. The CA upheld the National Labor Relations Commission's (NLRC) Decision, which affirmed the Labor Arbiter's Decision with modification, ordering Dolphin Ship Management, Inc. (now TDG Crew Management, Inc.) and/or Disney Cruise Line and/or Mr. Marcelo R. Raneses (petitioners) to pay Annie Rose T. Viray (respondent) permanent and total disability compensation in the amount of US$60,000.00 and 10% attorney's fees. 4

In their petition, petitioners argue that respondent's medical condition was determined by the company-designated physician Dr. Antonio A. Pobre (Dr. Pobre), as pre-existing and not work-related, being chronic in nature. In addition, there is no concrete proof that respondent's medical condition was caused by her employment on board the vessel. 5 Petitioners also allege that respondent unjustifiably refused the necessary medical treatment, which constitutes medical abandonment that effectively bars all claims for disability benefits. 6

As regards the 120/240 day-period and the assessment of Dr. Pobre, petitioners aver that respondent's disability was established when Dr. Pobre issued a Grade 8 assessment of respondent's disability within the 240-day period. 7

Since Dr. Pobre is the company-designated physician, his disability assessment deserves great weight and credence. 8 His findings should be upheld over that of the seafarer's private physician. 9 According to petitioners, the single medical certificate issued by respondent's private physician, cannot overthrow the assessment given by Dr. Pobre, which was arrived at after continuous medical examination and treatment, and referral of the respondent to a specialist, as well as objective tests and procedures in order to determine her actual condition. CAIHTE

Petitioners further argue that respondent failed to comply with the dispute resolution mechanism of the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC) requiring that, should the company-designated physician and the private physician of the seafarer have different assessments, the disagreement must be referred to a third doctor for a final assessment. 10 Since the disagreement was not referred to a third doctor, the company-designated physician's certification must prevail.

As regards attorney's fees, petitioners contend that respondent is not entitled thereto in the absence of bad faith on their part in denying respondent's claim. 11

Respondent, on the other hand, states that when she was employed by petitioners, she was declared free from any disability. She underwent a pre-employment medical examination (PEME) and was declared "FIT TO WORK." 12 She was free from any disability when she boarded the vessel on April 23, 2013. 13 When she suffered her right hand and back injuries on May 27, 2013, her employment contract with petitioners was still subsisting. 14 There was no medical abandonment on her part as she followed her physical therapy schedules. 15 She clarified that she did not agree to undergo a stem cell procedure, or to have a surgical operation, as suggested by Dr. Pobre. 16 After explaining to her the risks of such procedures, the safety of the respondent cannot be guaranteed. 17 Likewise, when she consulted other doctors with similar fields of specialization, they advised her that these procedures were too risky. 18

After the 240-day period, respondent was still being medically treated. 19 On June 12, 2013, she was again subjected to EMG and NCV of her right hand, for which she subsequently underwent an operation. 20 Despite the operation, she still felt pain and numbness in her right hand. 21 Respondent's last therapy session was on February 13, 2014, six days from the lapse of the 240-day period or on February 7, 2014. 22 It was on the said date when Dr. Pobre informed her that she was "UNFIT TO WORK" and entitled to a Grade 8 disability benefits.

On the part of Dr. Vernancio Garduce, an orthopedic surgeon, and respondent's private physician, he opined that respondent has Grade 5 disability and that it would be impossible for respondent to work as sea woman-custodial host. 23

Our Ruling

The petition is without merit.

As a rule, only questions of law may be raised in a petition for review on certiorari, filed before this Court. This principle applies with greater force in labor cases, as questions of fact are for labor tribunals to resolve. 24 An exception to this include instances where the findings of the lower courts or tribunals are contradictory with each other. 25

In this case, the Labor Arbiter had opposing positions with the NLRC and the CA, with respect to the amount of disability compensation awarded, and as to whether the grant of attorney's fees was proper. For these reasons, there is a need to review the records to determine which of them conform to evidentiary facts. 26

Respondent suffers from a

An employment contract between the seafarer and his employer is governed by their mutual agreement, subject to the requirement that the POEA-SEC be integrated in every seafarer's contract. 27 Since respondent's employment with petitioners commenced on April 16, 2013, the applicable law is the 2010 POEA-SEC. Under the 2010 POEA-SEC, a work-related illness is "any sickness[,] as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied." On the other hand, Section 20 A (4) of the 2010 POEA-SEC provides that even "illnesses [which are] not listed in Section 32 of this Contract are disputably presumed as work-related."

Jurisprudence has settled that the compensability of an ailment is not determined by whether the injury or disease was pre-existing at the time of the employment. 28 Rather, it is dependent on whether the seafarer's disease or injury was work-related or aggravated her condition. 29 Under the reasonable linkage test, in order for an illness or ailment to be compensable, it is sufficient that there is reasonable linkage between the disease suffered by the seafarer and her work, to lead a rational mind to conclude that her work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition she might have had. 30

In this case, Dr. Pobre stated in his Initial Medical Report that, "[Respondent's] injuries are considered work-related. She has been lifting heavy luggage as part of her job at the Disney Cruises Magic. This has caused her lumbar muscles to be strained or a possible disc herniation. Likewise, her hands also suffered due to the nature of her work." 31 Clearly on Dr. Pobre's assessment, it was established that respondent's illness was work-related.

Respondent did not commit

Medical abandonment requires a deliberate intention on the seafarer's part, and is evidenced by some overt acts to abandon treatment. 32 In Marlow Navigation Philippines, Inc. v. Reyes, 33 this Court ruled that the seafarer's refusal to undergo the recommended spine surgery did not amount to medical abandonment. 34 In the afore-mentioned case, records showed that the seafarer refused to undergo surgery and offered a justifiable reason of the risk of suffering lifetime paralysis. 35 Thus, refusal to undergo surgery cannot be taken against him. 36 Further, even if the seafarer opted to undergo surgery, he would still need at least 120 days of treatment before a final assessment of his condition could have been made. 37 Since the interim assessment was issued on the 141st day after the seafarer's repatriation, an additional 120 days of treatment would exceed the 240-day threshold, rendering him permanently and totally disabled by operation of law. 38

Here, respondent was medically repatriated on June 8, 2013, and on June 12, 2013, she underwent a surgical operation on her right hand. 39 However, she refused to undergo an operation due to its risk and because the doctor did not guarantee that she will survive the operation or that her injuries will be healed. 40 While Dr. Pobre recommended that respondent should undergo a stem cell procedure, petitioners refused the suggestion. 41 Dr. Pobre's second suggestion was to have a surgical operation wherein steel plates would be implanted in respondent's spine. 42 Respondent refused the procedure. Nevertheless, she continued with her physical therapy sessions with Dr. Pobre even after 240 days from the time of her medical repatriation. DETACa

Based on these circumstances, there was no medical abandonment on the part of respondent. She also offered justifiable reasons to refuse surgery: she may not be healed, or worse, she may not be able to survive the operation. Neither was there deliberate intent on respondent's part nor did she commit overt acts to abandon her treatment.

Respondent's disability became

The POEA-SEC states that the company-designated physician's primary responsibility is to determine the disability grading or fitness to work of seafarers. 43 In order for the company-designated physician's medical assessment or report to be conclusive, it has to be complete and definite, so as to give the seafarer proper disability benefits. 44

With regard to the duty of the company-designated physician to issue a final medical assessment, he/she is guided by the following:

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; 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. 45 (Emphasis supplied)

In Ampo-on v. Reinier Pacific International Shipping, Inc., 46 this Court ruled that the company-designated physician's assessment, being an interim assessment, should not prevail. The language of the assessment shows that the disability grading was merely interim as it was declared that "prognosis is guarded" and "[i]f patient is entitled to a disability; his suggested disability grading is Grade 8 — loss of 2/3 lifting power of the trunk." 47 Notably, the company-designated physician even informed petitioner that "[f]itness to work is unlikely to be given within his 120 days of treatment." 48

In this case, it was on January 8, 2014, or on the 214th day after respondent's repatriation, that Dr. Pobre issued his alleged final medical assessment. 49 The said medical assessment was not final because respondent's treatment was still ongoing, and she was still undergoing physical therapy.

As stated in Dr. Pobre's certification, respondent "attended our clinic for Physical Therapy for twice a week session from January 2, 2014 to March 31, 2014." 50 Further, Dr. Pobre provided in the January 8, 2014 Answer to Queries #4 51 pertaining to "A final disability grading in the event Ms. Viray cannot be pronounced FIT TO WORK: that based on her physical examination findings and MRI findings, I would give a POEA Grading Disability of Grade 8, that is, moderate rigidity or 2/3 loss of motion or lifting power of the trunk."

It can be gleaned that the use of the words, "in the event" and "I would give" means that the disability grading was not final but merely an interim medical assessment. The said medical assessment was based on incomplete findings, since the patient was still undergoing physical therapy. Moreover Dr. Pobre did not issue a subsequent certification. Since there was no final and definitive medical assessment issued on or before February 3, 2014, or within 240 days from the time of respondent's medical repatriation, her disability became permanent and total.

The third-doctor referral rule

Section 20 (A) provides, "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." The third-doctor referral rule is mandatory when: (1) there is a valid and timely assessment by the company-designated physician and (2) the appointed doctor of the seafarer refuted such assessment. 52 However, in Abundo v. Magsaysay Maritime Corp., n 53 this Court ruled that there is no need for a third doctor, if there is no definitive disability assessment made by the company-designated physician. The absence of the company-designated physician's final assessment and disability grading within the 240-day period made the seafarer's disability total and permanent, even without evaluation by a third doctor. 54

In the same vein, the third-doctor referral rule cannot be applied in this case due to the absence of a final and definitive medical assessment issued within the 240-day period.

Respondent is entitled to

Considering that the company-designated physician failed to issue a final, definite, and complete medical assessment on respondent's injuries, she is deemed totally and permanently disabled by operation of law, and is entitled to the corresponding benefit under the POEA-SEC, in the amount of US$60,000.00.

Although petitioners were not shown to have acted in gross and evident bad faith in refusing to satisfy respondent's claims, the latter is entitled to an award of ten percent (10%) attorney's fees, in accordance with Article 2208 of the Civil Code because she was clearly compelled to litigate to satisfy her claims for disability benefits. 55

The Court also takes note for the record that respondent made a statement in her memorandum 56 that she has already received the amount of P2,879,884.00 from petitioners, as conditional satisfaction of the judgment award. aDSIHc

WHEREFORE, the instant petition is DENIED. The April 25, 2018 Decision and the November 12, 2018 Resolution of the Court of Appeals in CA-G.R. SP No. 139774 are AFFIRMED. Petitioners Dolphin Ship Management, Inc. (now TDG Crew Management, Inc.) and/or Disney Cruise Line and/or Mr. Marcelo R. Raneses are directed to pay respondent Annie Rose T. Viray permanent and total disability compensation in the amount of US$60,000.00 or its peso equivalent, and ten percent (10%) attorney's fees, less the amount P2,879,884.00, which has already been received by Annie Rose T. Viray as conditional satisfaction of judgment award. The net amount that remains to be paid by petitioners shall earn six percent (6%) interest from the finality of this Resolution until full payment.

SO ORDERED." Gaerlan, J., designated as Additional Member vice Lopez, M., J., per Raffle dated September 22, 2021.

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 31-65.

2. Penned by Associate Justice Victoria Isabel A. Paredes, with Associate Justices Mario V. Lopez (now a member of this Court) and Carmelita Salandanan Manahan concurring; id at 14-23.

3.Id. at 25-26.

4.Id. at 17.

5.Id. at 38.

6.Id. at 46.

7.Id. at 51.

8.Id.

9.Id. at 57.

10.Id. at 63.

11.Id.

12.Id. at 111.

13.Id.

14.Id. at 110.

15.Id.

16.Id. at 111.

17.Id.

18.Id.

19.Id.

20.Id.

21.Id.

22.Id. at 112.

23.Id.

24.Magsaysay Maritime Corp. v. Cruz, 786 Phil. 451, 462 (2016).

25.Id.

26.Richie P. Chan v. Magsaysay Maritime Corporation, G.R. No. 239055, March 11, 2020.

27.Id.

28.Evic Human Resource Management, Inc. v. Jocel B. Cecilio, G.R. No. 235977, November 18, 2020.

29.Id.

30.Id.

31.Rollo, p. 19.

32.Marlow Navigation Philippines, Inc. v. Christopher R. Reyes, G.R. No. 250369, June 30, 2020. (Unsigned Resolution).

33.Id.

34.Id.

35.Id.

36.Id.

37.Id.

38.Id.

39.Rollo, p. 111.

40.Id.

41.Id.

42.Id.

43.Magsaysay Mol Marine, Inc. v. Atraje, 836 Phil. 1061, 1077 (2018).

44.Id.

45.Id. at 1079, citing Talaroc v. Arpaphil Shipping Corporation, 817 Phil. 598, 612 (2017).

46.Danille G. Ampo-on v. Reinier Pacific International Shipping, Inc. and/or Neptune Ship Management Services Pte./Nol Liner (Pte.), Ltd., G.R. No. 240614, June 10, 2019.

47.Id., Emphasis supplied.

48.Id., Emphasis supplied.

49.Rollo, p. 20.

50.Id.

51.Id., Emphasis supplied.

52.Doehle-Philman Manning Agency, Inc. v. Gatchalian, Jr., G.R. No. 207507, February 17, 2021.

53. G.R. No. 222348, November 20, 2019.

54.Id.

55.Marlow Navigation Philippines, Inc. v. Christopher R. Reyes, supra note 32.

56.Rollo, p. 22.

n Note from the Publisher: Written as "Magsaysay Magsaysay Maritime Corp." in the official document.