FIRST DIVISION
[G.R. No. 250027. December 7, 2022.]
ESCOLASTICO P. GALLERO, petitioner, vs. MARLOW NAVIGATION PHILS., INC., AND MARLOW NAVIGATION CO., LTD., 1respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated December 7, 2022 which reads as follows:
"G.R. No. 250027 (Escolastico P. Gallero v. Marlow Navigation Phils., Inc., and Marlow Navigation Co., Ltd.). — The instant Petition 2 for Review on Certiorari under Rule 45 of the Rules of Court seeks to reverse and set aside the Decision 3 dated 27 March 2019 and Resolution 4 dated 18 October 2019 of the Court of Appeals (CA) in CA-G.R. SP No. 154323. The CA partly granted respondents Marlow Navigation Phils., Inc., and Marlow Navigation Co., Ltd.'s (respondents, collectively) Petition for Review under Rule 43 of the Rules of Court and modified the Decision of the Panel of Arbitrators in MVA-080-RCMB-NCR-011-01-01-2017. 5
Antecedents
Petitioner Escolastico P. Gallero (Gallero) was hired as a cook by respondent Marlow Navigation Phils., Inc. (Marlow Navigation). 6 Respondent Marlow Navigation Co., Ltd. is the foreign principal of Marlow Navigation. 7
On 18 February 2015, Gallero was involved in an accident while working in the vessel M/V Warnow Trout. 8 He was examined in Hong Kong on 09 March 2015 and was thereafter recommended to be repatriated to the Philippines due to Sciatica with Radiculopathy. 9
Upon his arrival, Gallero reported to his agency, which then referred him to a company-designated physician. 10 On 12 March 2015, he underwent Magnetic Resonance Imaging (MRI) and was found to have "2 x 7 mm central disc protrusion effacing the ventral thecal sac at L2-L3 and minimal L1-2, L3-4, and L4-5 disc bulges." 11 His therapy with the company doctors continued for four months. 12 On 30 July 2015, he was given his final diagnosis, with a finding that he suffered from Sciatica with Radiculopathy at L4-L5 and L5-S1 Disc Bulges. 13
Following a six-month period of treatment, Gallero signed a new contract with Marlow Navigation and was again hired as a cook on board MV HR Maria on 22 September 2015. 14 This was covered by a second employment contract with a period of seven months. 15
On 08 December 2015, Gallero joined the crew of MV HR Maria in a firefighting drill. 16 When he was lowering a lifeboat, he felt something snap on his back, which triggered pain. 17 He was given pain relievers and oral medications to ease the pain, but he still continued with his regular work. 18
On 15 February 2016, Gallero was returning raw meat to the storage facility when the vessel encountered rough seas. 19 This caused him to drop 15 kilograms of raw meat and hit his waist on a steel bar. 20 After this incident, he would feel excruciating pain from time to time, which would only subside with the help of anti-pain medications. 21
Upon MV HR Maria's arrival in Bremen, Germany, the ship's captain referred Gallero to a hospital for medical consultation. 22 Gallero underwent MRI and was found to have Lumbago. 23 He was prescribed Ibuprofen and was told to avoid carrying heavy objects. 24 Despite this, Gallero still continued with his regular work and even rendered overtime work on various occasions. 25
A few months later, Gallero was allowed to be sent home as his contract already ended. 26 Within three days following his arrival in the Philippines or on 05 May 2016, 27 Gallero had his Post-Employment Medical Examination with the company-designated physician, Dr. Maricris Teresita Barrairo (Dr. Barrairo). 28 Dr. Barrairo discovered that Gallero had low back pain and T/C degenerative osteoarthritis. 29 He was given medication, and advised to undergo several tests. 30 He was further directed to undergo physiotherapy of the lumbar spine and both knees by the company orthopedist. 31
Gallero started his physiotherapy on 11 May 2016. 32 On 13 June 2016, the company orthopedist measured him for KT braces and advised him to undergo laminectomy surgery. 33 Gallero had another MRI and had several follow-up examinations and physiotherapy sessions with the company physicians. 34 He had hyaluronic acid injected on both of his knees on 13 July 2016. 35 However, he refused surgery and decided to continue wearing his KT braces instead. 36 Thereafter, he was advised to continue physiotherapy for his lumbar area and knees for another six sessions. 37
On 10 August 2016, the company-designated physician issued an interim assessment stating that Gallero had a disability evaluation of "Grade 11 — #6 under chest trunk spine slight rigidity or one third (1/3) loss of motion or lifting power of the trunk." 38
Subsequently, on 06 September 2016, or 127 days after Gallero's repatriation, the company-designated physician issued a Final Disability Assessment of "Grade 11, #6 under chest-trunk-spine, slight rigidity or one third 1/3 loss of motion or lifting power of the trunk" with a diagnosis for "Lumbar Strain secondary to Mild Lumbar Spondylosis; Degenerative Osteoarthritis, both knees, not work related." 39 Gallero was advised to undergo surgery since he had already maximized the physiotherapy of his lumbar area. 40 However, he decided not to undergo surgery and refused to explain his reason in writing. 41
Marlow Navigation wrote to Gallero asking him to report to its office to discuss his benefits, but the letter was returned to sender for the reason "Consignee is unknown." 42
In the meantime, Gallero secured the opinion of a second doctor, Doctor Manuel Fidel M. Magtira (Dr. Magtira). 43 The latter found him to be permanently unfit in any capacity to resume his duties as a seaman. 44
Thereafter, Marlow Navigation received a letter requesting its appearance before the Single Entry Approach (SENA) desk of the National Labor Relations Commission (NLRC) and a Notice to Arbitrate before the National Conciliation and Mediation Board (NCMB) for conciliation conferences, upon the request of Gallero. 45 The parties failed to reach an amicable settlement before the Panel of Arbitrators. 46
Ruling of the Panel of Arbitrators
On 27 July 2017, the Panel of Arbitrators issued its Decision in favor of Gallero, which reads:
WHEREFORE, premises considered, judgment is hereby rendered ORDERING herein respondents Marlow Navigation, et al., to jointly and severally pay [Gallero] [Collective Bargaining Agreement] CBA disability benefits of permanent total disability in the amount of US$98,848.00 as the parties['] CBA has Permanent Medical Unfitness Clause under Article 25.4 which does not distinguish between a disability caused by accidental injury or by an illness or disease.
Regarding [Gallero's] claim for sickness allowance, the record is bereft of proof that it has been paid by [Marlow], thus, this Panel of Arbitrators is constrained to grant the same pursuant to Article 23.2 of the parties['] CBA vis-à-vis his stipulated monthly basic wage, Gallero is entitled to sickness allowance in the amount of US$2,924.00.
[Gallero] is entitled to 10% of the total award as he hired the services of counsel to protect his interests. This belongs to him as part of his damages.
All other claims are dismissed for lack of merit.
SO ORDERED. 47
Aggrieved, Marlow Navigation filed a Motion for Reconsideration, which was denied in a Resolution dated 03 November 2017. 48 Hence, it filed a Petition for Review under Rule 43 of the Rules of Court. 49
Ruling of the CA
On 27 March 2019, the CA promulgated its assailed Decision 50 partly granting the petition of Marlow Navigation, viz.:
WHEREFORE, premises considered, the Petition for Review is PARTLY GRANTED. The Decision dated July 26, 2017 issued by the Panel of Arbitrators in MVA-080-RCMB-NCR-011-01-01-2017 is hereby MODIFIED, as follows: (1) Marlow Navigation Phils., Inc. is hereby ordered to pay Escolastico P. Gallero disability benefits in the amount of US$7,465.00, plus interest at the rate of 6% per annum, from the date of finality of this Decision until full satisfaction; and (2) the award of sickwage allowance and attorney's fees are deleted.
SO ORDERED.51
The CA explained that in accordance with Section 20 of the Philippine Overseas Employment Administration Standard Employment Contract (POEA SEC) 52 and Article 25.2 of the Collective Bargaining Agreement 53 (CBA) of the parties, referral to a third doctor is mandatory when: (1) there is a valid and timely assessment by a company-designated physician; and (2) the appointed doctor of the seafarer refuted such statement. 54 The CA observed that while the abovementioned requisites were present in the case, Gallero failed to signify his intention to resolve the conflict by referral to a third doctor. 55
Accordingly, the CA pronounced that the medical findings of the company-designated physician, Dr. Barrairo, should be deemed final and binding. 56 It was explained that this was more reasonable because Dr. Barrairo was able to monitor the condition of Gallero closely and regularly. 57 Hence, the CA concluded that the Panel of Arbitrators erred in relying on the findings of Gallero's physician, Dr. Magtira. 58 Aside from a Medical Report, there was no evidence that Dr. Magtira's findings were reached after an extensive examination of Gallero. 59
The CA also held that Gallero was entitled to disability benefits in accordance with the assessment report of Dr. Barrairo. 60 Pursuant to the POEA SEC and based on Gallero's disability rating, he was entitled to 14.93% of $50,000.00. 61 Thus, he was awarded "US$7,465.00 or its peso equivalent at the time of payment, which shall earn legal interest at the rate of six percent (6%) per [annum] from the finality of this Decision until fully paid." 62
The CA deleted the award for sick wage allowance since based on the CBA, entitlement to this allowance requires that the seafarer be repatriated because of an accident or sickness. 63 However, Gallero was repatriated due to the end of his contract. It also found the award of attorney's fees improper, considering that there was no showing that Marlow Navigation acted in bad faith. 64
Gallero moved for reconsideration, but the same was denied in a Resolution 65 dated 18 October 2019. Hence, Gallero elevated the matter to this Court by filing the instant petition. 66
Gallero maintains that referral to a third doctor is not mandatory. 67 He also asserts that the CA erred in deleting the award for sick wage allowance, given that he was immediately referred to a company physician for treatment upon repatriation. 68 Lastly, Gallero argues that attorney's fees should have been awarded since the case involves the recovery of wages of laborers or an action for indemnity under employer's liability laws, and Marlow Navigation's actions compelled him to incur expenses to protect his interests. 69
In its Comment, 70 Marlow Navigation argues that the CA correctly denied Gallero's claim. It pointed out that Gallero violated the POEA SEC when he failed to secure the opinion of a third doctor to resolve the conflicting opinions of the company-designated physician and his personal doctor. 71 Marlow Navigation explained that Gallero was assessed with partial disability, Grade 11, by the company-designated physician within the 240-day period of medical treatment. 72 The findings of the company-designated physician deserved more credence compared to the one-time examination of Gallero's doctor. 73 Further, Gallero was not entitled to sick wage allowance because he was repatriated due to the completion of his second contract and not because of medical reasons. 74 Lastly, Marlow Navigation maintained that the CA correctly deleted the award for attorney's fees since it did not act in bad faith. 75
Issues
The issues for resolution in this case are: (1) whether the CA erred in denying Gallero permanent disability benefits due to failure to refer to a third doctor; (2) whether the CA erred in deleting the award for sick wage allowance and attorney's fees.
Ruling of the Court
The Petition has no merit.
The CA was correct in denying the claim for permanent disability benefits due to failure to refer to a third doctor
Gallero argues that the POEA SEC provision on the referral to a third doctor is a directory provision of the law and is required only if both parties agree to it. Consequently, the CA gravely erred when it ruled that referral to a third doctor is mandatory, as this amounts to revising the intention of the legislature.
The arguments of Gallero are untenable.
It is established that the relationship of the employer and the seafarer are governed primarily by the POEA SEC, which shall be supplemented by the CBA executed between the parties. 76 It is settled that when the findings of the company-designated physician and the personal doctor of the seafarer are conflicting, referral to a third doctor may be agreed upon jointly by the parties. 77 As pointed out by the CA, referral to a third doctor becomes mandatory when the following requisites are present: "(1) there is a valid and timely assessment made by the company-designated physician; and (2) the seafarer's appointed doctor refuted such assessment." 78
For the assessment made by the company-designated physician to be valid, it must be complete and timely made. 79 This Court has summarized the periods when the company-designated physician may assess the seafarer: 80
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.
Upon knowledge of the difference in the findings of the company-designated physician and the personal doctor of the seafarer, the latter has the duty to express his or her disagreement by asking for a referral to a third doctor. 81 If this method is not followed, the assessment of the company-designated physician shall become final and binding since the seafarer shall be considered in breach of the POEA SEC. 82
In this case, the company-designated physician, Dr. Barrairo, directed Gallero to take medication and undergo several tests within the initial 120-day period. After the multiple tests conducted on Gallero, it was found that he needed further medical assessment. He had several follow up examinations and physiotherapy sessions before Dr. Barrairo issued the final assessment of a Grade 11 disability, and a final prognosis of good. The final assessment was made 127 days after Gallero's repatriation, issued after a comprehensive examination and within the 240-day period provided by law and jurisprudence.
When Gallero sought the opinion of another physician, Dr. Magtira, the latter found the former permanently disabled to be a seaman. This assessment is obviously in conflict with Dr. Barrairo's findings. Consequently, the procedure under the POEA SEC and the CBA should have been followed and Gallero should have obtained Marlow Navigation's agreement to refer his case to a third doctor.
Since there was no referral to a third doctor, the findings of the company-designated physician are deemed final and binding. Accordingly, Gallero is entitled to disability benefits in accordance with the final assessment of Dr. Barrairo.
The CA was correct in deleting the award for sick wage allowance and attorney's fees
Gallero likewise argues that the CA erred in deleting the award for sick wage allowance which was granted by the Panel of Arbitrators in the amount of $2,924.00. To support his claim, Gallero refers to the following stipulations in the CBA:
23.1 When a seafarer is landed at any port because of sickness or injury, a pro rata payment of their basic wages plus guaranteed or, in case of officers, fixed overtime, shall continue until they have been repatriated at the Company's expense as specified in Article 20.
23.2 Thereafter the seafarers shall be entitled to sick pay at the rate equivalent to their basic wage while they remain sick up to a maximum of 130 days. The provision of sick pay following repatriation shall be subject to submission of a valid medical certificate, without undue delay.
23.3 However, in the event of incapacity due to an accident the basic wages shall be paid until the injured seafarer has been cured or until a medical determination is made in accordance with clause 25.2 concerning permanent disability.
Notably, these stipulations expressly provide that sick wage allowance may only be paid to a seafarer if he or she lands at any port due to a sickness or injury.
To recall, Gallego executed two employment contracts with Marlow Navigation. During Gallero's first employment contract, he was repatriated due to Sciatica with Radiculopathy. However, the contract relevant to this case is the second employment contract. In the latter, Gallero's return to the Philippines was due to the end of his employment contract with Marlow Navigation, and not because of any sickness or injury. He initiated his Complaint only after the Post-Employment Medical Examination required by Marlow Navigation. Therefore, the CA correctly deleted the award for sick wage allowance.
Lastly, Gallero asserts that the CA should have maintained the award for attorney's fees in accordance with Article 2208 of the Civil Code, which states that such can be recovered in actions for the recovery of wages of laborers, actions for indemnity under employer's liability laws, and when the plaintiff was compelled to incur expenses to protect his interest.
It has been held that attorney's fees may be awarded in favor of employees who were compelled to file an action for the recovery of their lawful wages or benefits. 83 In labor cases, the rule is that malice or bad faith need not be established to warrant an award for attorney's fees. 84 However, it must at least be shown that the wages or benefits were withheld without legal basis or reason. 85
Based on the foregoing discussion, We find that Marlow Navigation was justified in denying Gallero's claim for total and permanent disability benefits due to his failure to observe the provisions of the POEA SEC and the CBA. Therefore, the CA also correctly deleted the award for attorney's fees as it cannot be said that Marlow Navigation withheld Gallero's benefits were without legal basis.
Lastly, it bears noting that Marlow Navigation paid the judgment award of $111,656.80 together with execution fee of P58,139.80 before the NCMB, in compliance with the Writ of Execution issued by the Panel of Arbitrators. Hence, the excess payment made must be returned to prevent unjust enrichment on the part of Gallero. 86
WHEREFORE, the petition is DENIED. The assailed Decision dated 27 March 2019 and Resolution dated 18 October 2019 of the Court of Appeals in CA-G.R. SP No. 154323 are AFFIRMED.
The Notice of Change of Address of Atty. Luzvie T. Gonzaga, counsel for respondents, is NOTED, and her request that copies of notices, orders, resolutions, pleadings, motions and other papers issued/filed in this case be furnished to her new address at 5th Floor, Remedios Tower, 1971 Leon Guinto St., Malate, 1004 Manila, is GRANTED.
SO ORDERED." Hernando, J., on official leave; Rosario, J., no part; Dimaampao J., designated as additional Member per raffle dated 04 October 2022.
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1. Also referred to as "Marlow Navigation Co. Ltd." in the Records.
2. Rollo, pp. 10-50.
3. Id. at 57-77. Penned by Associate Justice Perpetua T. Atal-Paño and concurred in by Associate Justices Ricardo R. Rosario (now a Member of this Court) and Nina G. Antonio-Valenzuela.
4. Id. at 52-55. Penned by Associate Justice Perpetua T. Atal-Paño and concurred in by Associate Justices Ricardo R. Rosario (now a Member of this Court) and Nina G. Antonio-Valenzuela.
5. Id. at 77.
6. Id. at 58.
7. Id. at 10.
8. Id. at 58.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. Id.
17. Id.
18. Id.
19. Id. at 59.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Id.
26. Id.
27. Id. at 89.
28. Id. at 59.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
36. Id. at 60.
37. Id.
38. Id.
39. Id.
40. Id.
41. Id.
42. Id.
43. Id.
44. Id.
45. Id.
46. Id. at 61.
47. Id.
48. Id. at 61-62.
49. Id. at 62.
50. Id. at 57-77.
51. Id. at 77.
52. Section 20. x x x
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.
53. 25.2 The disability suffered by the seafarer shall be determined by a doctor appointed by the Company. If a doctor appointed by or on behalf of the seafarer disagrees with the assessment, a third doctor may be nominated jointly between the Company and the Union and the decision of this doctor shall be final and binding on both parties.
54. Rollo, pp. 65-71.
55. Id. at 69.
56. Id. at 71-73.
57. Id. at 73.
58. Id.
59. Id.
60. Id. at 75.
61. Id.
62. Id.
63. Id. at 73-75.
64. Id. at 76.
65. Id. at 52-55.
66. Id. at 10-50.
67. Id. at 33-42.
68. Id. at 43-45.
69. Id.
70. Id. at 86-128.
71. Id. at 95-100.
72. Id. at 100-103.
73. Id. at 103-110.
74. Id. at 111-122.
75. Id.
76. Vergara v. Hammonia Maritime Services, Inc., 588 Phil. 895, 908-909 (2008).
77. Philippine Transmarine Carriers, Inc. v. San Juan, G.R. No. 207511, 05 October 2020.
78. Esteva v. Wilhelmsen Smith Bell Manning, Inc., G.R. No. 225899, 10 July 2019.
79. See Libang, Jr. v. Indochina Ship Management, Inc., 743 Phil. 286-301 (2014).
80. Aldaba v. Career Philippines Shipmanagement, Inc., 811 Phil. 486, 502-503 (2017).
81. Murillo v. Philippine Transmarine Carriers, Inc., 838 Phil. 912, 920 (2018).
82. Id.
83. Baron Republic Theatrical v. Peralta, 617 Phil. 464, 473-474 (2009).
84. Id.
85. Id.
86. Marlow Navigation Phils., Inc. v. Quijano, G.R. No. 234346, 14 August 2019.