MOT Barko Manila, Inc. v. Delamide

FIRST DIVISION

[G.R. No. 228487. November 23, 2021.]

MOT BARKO MANILA, INC., MITSUBISHI ORE TRANSPORT CO., LTD. and/or MR. NOEL E. HERNANDEZ, petitioners,vs. ROLANDO BENDECIO DELAMIDE, SUBSTITUTED BY NERISSA V. DELAMIDE, *respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated November 23, 2021 which reads as follows:

"G.R. No. 228487 (MOT Barko Manila, Inc., Mitsubishi Ore Transport Co., Ltd. and/or Mr. Noel E. Hernandez v. Rolando Bendecio Delamide, substituted by Nerissa V. Delamide). — This is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Court seeking to reverse and/or set aside the Decision 2 dated August 30, 2016 and the Resolution 3 dated November 22, 2016 of the Court of Appeals (CA) in CA-G.R. SP No. 142450.

Briefly, the assailed Decision reversed and set aside the Decision 4 dated May 31, 2015 of the National Labor Relations Commission (NLRC) in NLRC LAC (OFW-M) 05-000358-15/NLRC NCR OFW-M Case No. 05-05385-14 and reinstated the Decision 5 dated March 25, 2015 of the Labor Arbiter (LA) granting respondent's claim for total and permanent disability benefits, sickness allowance, reimbursement of medical and transportation expenses, and attorney's fees.

On the other hand, the impugned Resolution denied petitioners' Motion for Reconsideration.

The Antecedents

Respondent Rolando B. Delamide (Delamide) alleged that he was a seafarer since 1994 on board different ocean-going vessels. He was first hired as an Oiler until he reached the rank of First Engineer. 6

On December 13, 2012, Delamide was hired by petitioner MOT Barko Manila, Inc. (MOT Barko), for and on behalf of its foreign principal, Mitsubishi Ore Transport Co., Ltd. (Mitsubishi), as First Engineer on board the vessel, "MV Dalo Austral" (MV Dalo) for a period of nine months, with a monthly salary of US$1,382.00. 7

On April 27, 2013, while Delamide was supervising the loading of engine provisions at the port of Singapore, there was a sudden heavy downpour prompting everyone to rush in bringing the engine supplies to safety. Delamide helped in pushing a heavy pushcart, causing him to accidentally slip on the rain-soaked deck floor of the vessel, and for his back to snap. With this, he experienced intense pain on his back and spine. He reported the accident to his superiors and he was given paracetamol for treatment. 8

On May 8, 2013, Delamide could no longer tolerate the severe pain on his back. After docking in Japan on May 9, 2013, he consulted a doctor who diagnosed him to be suffering from lumbago. No Magnetic Resonance Imaging (MRI) was performed as the ship had to leave soon. Instead, he was given pain relievers and was advised to refrain from heavy workload. 9

When his condition worsened, he requested to be medically repatriated. Thus, he arrived in Manila on August 20, 2013. The following day, he reported at MOT Barko's office and requested for a referral to a company-designated physician. However, it refused to provide him with medical treatment, prompting him to consult his own doctor. 10

Sometime in the second week of September 2013, MOT Barko instructed Delamide to undergo the Pre-Employment Medical Examination (PEME) for his possible redeployment. The result of the PEME showed that he was unfit for work due to the presence of pain in his lumbar spine and nodule on his chest. 11 The Computed Tomography (CT) scan 12 dated September 16, 2013 showed that he has pulmonary chest nodules at the right lower lobe. The Histopathological Report 13 dated October 7, 2013 and Cytology Report 14 dated October 25, 2013 both revealed that he has metastatic adenocarcinoma or cancer of the lungs.

On October 18, 2013, Delamide had a surgery on the lumbar spine. From November 2013 to March 2014, he also underwent six cycles of chemotherapy. In a Medical Certificate 15 dated February 3, 2014, he was again declared unfit to work. Since his condition failed to improve, he consulted Dr. Li-Ann L. Orencia (Dr. Orencia), an occupational health expert. After reviewing his medical history and laboratory results, Dr. Orencia issued a Medical Certificate 16 dated March 24, 2014 stating that Delamide's illness is work-related with a Grade 1 impediment. A CT scan 17 dated April 24, 2014, further showed that Delamide was unfit to work due to his lumbar spine injury and lung cancer.

Following MOT Barko and Mitsubishi's refusal to pay his disability benefits, Delamide filed a complaint against them for the payment of his total and permanent disability benefits pursuant to their existing Collective Bargaining Agreement (CBA). 18

For their part, MOT Barko and Mitsubishi denied Delamide's claim for disability benefits. They claimed that while on board the vessel, Delamide suffered from back pain. On May 9, 2013, he was referred for a medical check-up at Mizushima, Japan and was diagnosed with lumbago. He was given medication and declared fit for light work. Delamide was able to finish his contract of employment. After repatriation, he did not report to the company-designated physician within three days, but sought medical consultation with a private doctor. 19

In September 2013, Delamide underwent PEME for a next voyage. However, he was declared unfit to work. In October 2013, he requested that they pay his medical expenses, but they refused since their contractual relationship was already terminated and he did not comply with the mandatory three-day reportorial requirement. Delamide is also not entitled to disability benefits under the CBA because there was no accident on board the vessel. MOT Barko and Mitsubishi claimed that despite Delamide's non-entitlement to medical and disability benefits, they offered him financial assistance amounting to US$2,000.00. When they refused to give him a higher amount, Delamide filed a complaint against them. 20 SDAaTC

On May 25, 2015, the LA rendered a Decision in favor of Delamide, the dispositive portion of which reads:

WHEREFORE, a Decision is hereby rendered ordering Respondent[s] MOT Barko Manila, Inc. and Mitsubishi Ore Transport Co., Ltd., to pay complainant Rolando B. Delamide, the amount of US$155,257 representing total disability benefits, US$5,528 sickness allowance or their peso equivalent at the time of actual payment.

Respondents are further ordered to pay complainant, [P]577,938[.00] as medical and transportation expenses plus 10% of the total award as and by way of attorney's fees.

SO ORDERED. 21

The LA ratiocinated that Delamide's lumbar injury was due to an accident on board the vessel when he slipped on the rain-soaked deck while loading the engine provisions. The LA rejected MOT Barko's contention that there should have been a Master's Report of the accident. According to the LA, the accident was not a major incident that needed to be reported to the Master. Delamide was also not aware of the severity of the accident to cause an Accident Report. Nevertheless, the LA noted that the doctor abroad required the Master to complete the Medical Report but the same was not made. Delamide was simply given paracetamol and declared fit for light duties.

In addition, the LA held that Delamide's lung cancer is work-related because, as First Engineer, he was always in the engine room where highly poisonous chemicals, oils, and gases, including carbon dioxide are emitted. The LA gave credence to the Medical Certificate of Delamide's doctor that he was exposed to asbestos inhalation for several years in the engine room, which is a highly cancerous substance.

As Delamide suffered an injury due to an accident during the effectivity of his contract and the company-designated physician has not declared him fit to work, the LA opined that Delamide is entitled to total and permanent disability benefits pursuant to the parties' CBA. Delamide is also entitled to the reimbursement of his medical and transportation expenses in view of MOT Barko's admission that they did not provide him with medical attention and treatment. Finally, Delamide is entitled to attorney's fees as he was constrained to hire the services of a lawyer to protect his interest.

Dismayed by the unfavorable ruling, MOT Barko and Mitsubishi elevated the matter to the NLRC.

On May 31, 2015 the NLRC rendered a Decision, 22 which reversed and set aside the LA's Decision. The NLRC held that Delamide failed to prove by substantial evidence that he is entitled to total and permanent disability benefits. There was no proof that he suffered an accident on board the vessel for him to have a severe lower back pain, which led to the diagnosis of lumbago. He also failed to present the Master's Report or ship logbook to prove that an accident took place. The Medical Request Form dated May 9, 2013, which was issued in Japan never alluded that he had an accident. Likewise, his succeeding medical reports also never mentioned that an accident happened while he was under MOT Barko's employ.

The NLRC also found that Delamide cannot also claim disability benefits for his metastatic adenocarcinoma or cancer of the lungs, because it is not an occupational disease under Section 32-A of the Philippine Overseas Employment Association-Standard Employment Contract (POEA-SEC). Further, Delamide failed to establish how his duties or tasks on board the vessel contributed to the development of, or aggravated his metastatic adenocarcinoma. Delamide's failure to comply with the mandatory three-day reportorial requirement from repatriation also disqualified him from claiming disability benefits.

Aggrieved, Delamide filed a Motion for Reconsideration, but the NLRC denied the same in its Resolution 23 dated July 29, 2015.

Unperturbed, Delamide filed a petition for certiorari before the CA claiming that the NLRC committed grave abuse of discretion in finding that his illness is not work-related and in ultimately denying his claim for total and permanent disability compensation.

On August 30, 2016, the CA rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED. The assailed Decision and Resolution of public respondent NLRC are SET ASIDE and the Decision of the Labor Arbiter is REINSTATED.

SO ORDERED. 24

Similar to the LA, the CA held that Delamide was able to prove by substantial evidence the causal connection between his work as First Engineer and his metastatic adenocarcinoma or lung cancer. According to the CA, the nature of Delamide's work has constantly exposed him to various hazardous chemicals and toxic substances inside the engine room, which have increased the risk of contracting lung cancer.

The CA also gave credence to respondent's claim that after medical repatriation, he went to MOT Barko's office for post-medical examination, but the latter refused. For the CA, the events that transpired after the said visit have corroborated Delamide's claim that he sought medical assistance but was denied by MOT Barko.

In addition, the CA was convinced that Delamide's lumbar injury was the result of an accident on board the vessel. The absence of Master's Report was attributed to the master's failure to perform his duty to issue a Medical Report following Delamide's medical consult abroad.

Since Delamide had suffered a work-related illness and injury due to an accident, the CA held that the provisions of the CBA providing for a higher compensation benefits should be applied to him.

Unconvinced by the ruling, MOT Barko and Mitsubishi moved for reconsideration, but to no avail, as the CA denied the same in its impugned Resolution dated November 22, 2016.

Hence, this petition.

During the pendency of the case, Dylamide's counsel filed a Notice of Death with Motion for Substitution 25 dated January 12, 2017 informing this Court that Delamide has already died on December 27, 2016 due to Bronchogenic Carcinoma with Bone Metastasis. Thus, in a Resolution 26 dated June 19, 2017, this Court granted the motion allowing respondent Delamide to be substituted by his widow, Nerissa V. Delamide as party-respondent.

Issue

The threshold issue to be resolved is whether the CA correctly held that Delamide's illness is work-related thereby entitling him to total and permanent disability benefits.

In the main, MOT Barko and Mitsubishi maintained that Delamide is not entitled to his claim for total and permanent disability benefits because he failed to prove by substantial evidence how his lung cancer can be classified as work-related. 27 Delamide was also precluded from claiming disability compensation due to his failure to comply with the mandatory three-day reportorial requirement after repatriation pursuant to Section 20 (A) of the POEA-SEC. 28 The parties' CBA was also inapplicable in this case because there was no evidence to prove that Delamide figured in an accident while on board the vessel. 29 Lastly, Delamide is not entitled to attorney's fees because they have not acted with malice or bad faith in denying his monetary claims. 30

On the other hand, Delamide counters that he is entitled to his disability benefits because his working conditions posed the risk of exposure to known carcinogens, and while his dreaded disease may not be directly and exclusively related to his industrial and occupational exposures, the probability of it being aggravated by his working condition exists. 31 He reiterated that as First Engineer on board the vessel MV Dalo he was exposed to various chemicals and toxic substances, which could have caused, aggravated or contributed even to a small degree to his lung cancer. He also recapitulated that after repatriation, he went to MOT Barko's office to be referred to a company-designated physician, but it refused to provide him with medical treatment. As a result, he was constrained to have himself medically examined and treated by his own doctor. Delamide insists that it is the obligation of the ship owner to refer the seafarer for post-employment examination when the latter suffers an illness while under employment. 32

Our Ruling

The petition is partly meritorious. acEHCD

Settled is the rule that entitlement of seafarers to disability benefits is governed not only by medical findings but, by law and by contract. 33 The relevant contracts are: (a) the POEA-SEC, which is a standard set of provisions deemed incorporated in every seafarer's contract of employment; (b) the CBA, if any and; (c) the employment agreement between the seafarer and his employer. 34 By law, the Labor Code provisions on disability apply with equal force to seafarers. 35

In this case, respondent was employed by petitioners on December 13, 2012, thus the 2010 POEA-SEC contract governs their relations and correlatively, respondent's claims for disability benefits.

Compliance with the three-day

Pursuant to Section 20 (A) (3) of the 2010 POEA-SEC, when the seafarer suffers from a work-related illness during the term of his/her contract, the employer shall be liable to pay for the following: (1) the seafarer's wages; (2) costs of medical treatment both in a foreign port and in the Philippines until the seafarer is declared fit to work, or the disability rating is established by the company-designated physician; (3) sickness allowance which shall not exceed 120 days; and (4) reimbursement of reasonable medicine, traveling, and accommodation expenses. However, in order to be qualified for these monetary benefits, the seafarer is mandatorily required to submit himself/herself to post-employment medical examination by a company-designated physician within three working days upon his/her repatriation. In the event that the seafarer fails to comply with this mandatory reporting requirement, the POEA Contract provides that the seafarer shall not be qualified to receive his/her disability benefits.

The mandatory character of this three-day reportorial requirement has been explained in the case of Jebsens Maritime, Inc. v. Undag, 36 in this wise:

x x x. The rationale behind the rule can easily be divined. Within three days from repatriation, it would be fairly easier for a physician to determine if the illness was work-related or not. After that period, there would be difficulty in ascertaining the real cause of the illness.

To ignore the rule would set a precedent with negative repercussions because it would open the floodgates to a limitless number of seafarers claiming disability benefits. It would certainly be unfair to the employer who would have difficulty determining the cause of a claimant's illness considering the passage of time. In such a case, the employers would have no protection against unrelated disability claims. 37

Moreover, reporting to the company within three days from repatriation is required so that the company-designated physician can promptly arrive at a medical diagnosis, considering that he has either 120 or 240 days, depending on the circumstances, within which to complete the assessment of the seafarer; otherwise, the disability claim should be granted. 38 Reporting to the company immediately would make it easier for a physician to determine the cause of illness or injury. Beyond the three-day period, it may prove difficult to ascertain the real cause of the illness or injury. 39

Nevertheless, while the requirement to report within three working days from repatriation appears to be indispensable in character, there are recognized exceptions to this rule, namely: (1) when the seafarer is incapacitated to report to the employer upon his repatriation; and (2) when the employer inadvertently or deliberately refused to submit the seafarer to a post-employment medical examination by a company-designated physician. 40

In this case, respondent averred that he requested for a medical repatriation. He arrived in Manila on August 20, 2013 and on the next day, he reported to petitioners' office and requested that he be referred to the company-designated physician. However, petitioners refused and denied him of any medical treatment, which prompted him to consult his own doctor. On the other hand, petitioners claim that it was respondent who failed to submit himself to post-medical examination within three days from repatriation and instead consulted his own doctor. Petitioners also claim that respondent's employment was terminated due to a finished contract and was not medically repatriated.

As between these two contending allegations, this Court is inclined to give more weight and credit to the claim of the respondent.

It remains undisputed that prior to repatriation, respondent was already suffering from a lower back pain. Thus, on May 9, 2013 he was referred to a foreign doctor in Japan, where he was assessed to be suffering from lumbago. He was given pain relievers and was declared fit, but only for the light work. 41 When respondent could no longer tolerate the pain, he requested to be medically repatriated and arrived in the Philippines on August 20, 2013. Respondent's claim that he was medically repatriated is corroborated by the fact that he failed to finish his nine-month employment contract. A perusal of the records shows that respondent's Contract of Employment 42 dated December 6, 2012 commenced only when he departed for M/V Dalo on December 13, 2012, 43 in accordance with Section 2 (A) 44 of the 2010 POEA-SEC. Since his contract of service was for a period of nine months reckoned from his actual departure from the point of hire or until September 13, 2013, his sign off from the vessel on August 20, 2013 was clearly short of the contracted period. Accordingly, absent any justification for the contract's early termination, this Court cannot give credence to petitioners' assertion that respondent was repatriated due to expiration or completion of his employment contract.

Given these circumstances, it is highly illogical that respondent, who was medically repatriated and has a legitimate claim for disability benefit would prefer to consult his own doctor for medical treatment, when he could have simply availed the services of the company-designated physician upon repatriation. The only reasonable explanation is that, it was the petitioners who refused or declined to provide him with post-medical examination and treatment.

In Interorient Maritime Enterprises, Inc. v. Remo45 this Court recognized and addressed the unscrupulous practice of employers of deliberately or inadvertently refusing to refer the seafarer to the company-designated physician to deny his disability claim. In the said case, the seafarer reported to the employer for post-employment medical examination within three working days from repatriation. However, the employer did not refer him to a company-designated physician because he already signed a quitclaim, releasing it from liability. This Court ruled therein that the absence of post-employment medical examination should not be taken against the seafarer because it was the employer who declined to provide the same.

Moreover, it is settled that the onus of establishing that the seafarer was referred to a company-designated physician is on the employer. 46 Stated differently, the burden to prove with evidence whether the seafarer was referred to a company-designated doctor rests on the employer as the latter has custody of the documents, and not the seafarer. 47 Here, petitioners could have at least presented its visitor's logbook to disprove respondent's claim that he went to their office for post-employment medical examination. However, none was presented in this case. Thus, as between respondent's claim that his request for medical examination and treatment was rejected and petitioners' bare denial of the same, it has been held that the former's positive assertion is generally entitled to more weight. 48

Furthermore, this Court recognizes that when the evidence in labor cases is in equipoise, the doubt is resolved in favor of the employee. 49 This is in line with the policy of the State to afford greater protection to labor. 50

In sum, the absence of post-employment medical examination cannot be used to defeat respondent's claim for disability benefits because the failure to comply with the said requirement was not due to the seafarer's fault but due to the deliberate refusal of his employers.

Work-relatedness of

Pursuant to Section 20 (A) of the 2010 POEA-SEC, two elements must concur in order for a disability to be compensable: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment.

Correlatively, the principle of work-relation requires that the disease or illness in question must be one of those listed as an occupational disease under Section 32-A of the POEA-SEC. 51 At any rate, the law acknowledges that there are certain diseases not otherwise considered as an occupational disease under the POEA-SEC may nevertheless have been caused or aggravated by the seafarer's working conditions. 52 In these situations, the law recognizes the inherent paucity of the list and the difficulty, if not the outright improbability, of accounting for all the known and unknown diseases that may be associated with, caused or aggravated by such working conditions. 53 To address this issue, Section 20 (A) (4) of the POEA-SEC has created a disputable presumption in favor of compensability by mandating that those illnesses not listed in Section 32 are disputably presumed as work-related. 54 Notwithstanding this presumption, We have held that on due process grounds, the claimant-seafarer must still prove by substantial evidence that his work conditions caused or at least increased the risk of contracting the disease. 55 This is because awards of compensation cannot rest entirely on bare assertions and presumptions. In order to establish compensability of a non-occupational disease, reasonable proof of work-connection is sufficient — direct causal relation is not required. 56 Thus, probability, not the ultimate degree of certainty, is the test of proof in compensation proceedings. 57

In this case, it bears stressing that respondent's metastatic adenocarcinoma or lung cancer is not among the occupational diseases listed under Section 32-A of the 2010 POEA-SEC. Thus, it is only disputably presumed to be work-related. Nevertheless, this Court affirms the uniform findings of the CA and LA that respondent was able to prove by substantial evidence the work-relatedness of his illness. SDHTEC

Foremost, it must be recalled that prior to respondent's repatriation, he was already suffering from serious lower back pains on board petitioners' vessel. He was then referred to a foreign doctor in Japan who merely attributed his back pains to lumbago. 58 When he was repatriated in the Philippines on August 20, 2013, he continued to suffer lower back pains. Subsequently, he underwent several medical examinations. The CT scan 59 dated September 16, 2013 showed that he has pulmonary chest nodules at the right lower lobe. The Histopathological Report 60 dated October 7, 2013 and Cytology Report 61 dated October 25, 2013, both revealed that he has metastatic adenocarcinoma or cancer of the lungs. Consequently, on October 18, 2013, respondent had surgery on the lumbar spine and underwent six cycles of chemotherapy from November 2013 to March 2014.

As a ship engineer, respondent's duty involves operating, maintaining and repairing the ship's engine, mechanical systems, and equipment. Necessarily, he was required to be in the engine room most of the time and confined spaces where exposure to injurious and hazardous chemicals and substances such as dust, fumes, emissions and irritant agents is high.

Based on medical studies, asbestos, which in previous years are widely used on board ship, has been suggested to increase lung cancer among seafarers. Asbestos is the only known cause of malignant mesothelioma. As a result of the vibration of the ship and various repair works of asbestos containing constructions, asbestos fibres can be loosened and spread into the indoor air on board the ship. For engine crews, their exposure to asbestos and other agents in the engine room have been recognized to increase their risk of contracting lung cancer. 62

Notably, respondent has likewise cited several medical studies and medical literatures to support his claim that his lung cancer is work-related. In particular, he cited the International Hazard Datasheets on Occupation released by the International Labour Organization, which identified the chemical hazards to which a ship engineer is exposed, to wit:

a. Exposure to various chemicals such as: acids, adhesives, caulking compounds, fluxes (solder), glues, hydrochloric acid, sulfuric zinc chloride, tars, greases, oils and various distillation products, inorganic lead, solvents, thinners, etc.;

b. Exposure to toxic substances released sometimes when mixing different chemicals;

c. Exposure to carbon monoxide and exhaust gases. 63

Respondent has also advanced two medical studies, which specifically identified asbestos as a risk factor for acquiring lung cancer among engine crews:

In a study conducted by Karl Forsel S. Hagenberg and Ralph Nilsson entitled "Lung Cancer and Mesothelioma Among Engine Crew — Case Reports with Risk Assessment of Previous and Ongoing Exposure to Carcinogens, it was found out that:

Both smoking and work-related exposure to asbestos were considered risk factors [for lung cancer]. x x x. Asbestos is a well-known risk factor for lung cancer. In insurance cases in Sweden, a period of 15-20 years in a clearly asbestos-exposed occupation is considered sufficient for workers' compensation for lung cancer.

In another study conducted by H. Saami J. Pentti and E. Pukkala entitled Cancer at Sea: A Case-Control Study among Male Finnish Seafarers revealed that:

The OR of lung cancer among engine crew increased borderline significantly with increasing years at work. This suggests that engine room conditions may include factors that add to the risk of lung cancer, such as polyaromatic hydrocarbons (PAHs) and asbestos. 64

Aside from these medical studies, respondent's quest for proving the work-relatedness of his illness is supported by the medical findings of his doctor, who declared that as First Engineer, respondent was in charge of maintaining the machines which exposed him to asbestos inhalation from the machine generator while overhauling, as well as, to fumes and chemicals during bunkering. 65

Given the nature of respondent's work in conjunction with medical studies and the assessment of his own doctor, there exists a reasonable link between respondent's work and illness. It is highly probable that his constant exposure to hazardous chemicals, toxins and substances inside the engine room have caused, increased or at the very least contributed even to a small degree to his lung cancer. Pertinent on this point were the following disquisitions of the CA:

In the performance of his duties on board the vessel, [respondent] was always in the engine room supervising the maintenance and functioning of the engine and other machineries. He was exposed to various chemicals, oils and substances emitted by the engine and used in maintaining and cleaning the same. Hence, he was continuously subjected to all the hazards of machine attendance and maintenance and to the various chemicals used, as well as to the toxins, gases and substances released in using these chemicals and substances. x x x.

Apparently, by the very nature of his employment alone, the risk of contracting cancer is high because [respondent's] constant and great exposure to the risk factors that can lead to the development of said life-threatening illness. Given the foregoing, no error was committed by the Labor Arbiter in finding that [respondent's] lung cancer is work-related. In fact, it could even be gleaned from the circumstances surrounding the case that he contracted the same during the term of his employment. 66

Significantly, it bears stressing that petitioners have not presented any controverting evidence to dispute respondent's claim that his lung cancer is work-related. As such, this Court finds no error on the part of the CA when it considered the totality of the evidence presented by the respondent vis-à-vis the nature of his work in declaring that his illness is work-related and thus, compensable.

Respondent's entitlement to

Having established a reasonable link between the work and illness of respondent, it becomes imperative on the part of the company-designated physician to arrive at a definite assessment of the seafarer's fitness to resume sea duties or to determine the degree of his disability within a period of 120 or 240 days from repatriation, as the case may be. That should he fail to do so and the seafarer's medical condition remains unresolved, the seafarer shall be deemed totally and permanently disabled. 67 HSAcaE

Here, since there is no definite assessment from the company-designated physician declaring respondent's fitness for sea duties during the periods provided by law, it follows that by operation of law, his illness is deemed to have ripened into total and permanent disability entitling him to total and permanent disability benefits.

Application of the POEA-

Nevertheless, even if respondent is entitled to total and permanent disability benefits, there is a need to modify the amount awarded in his favor. In the assailed Decision, the CA applied the disability provision of the IBF JSU/AMOSUP IMMAJ, the parties' CBA, which provides for a higher disability compensation than that provided under POEA-SEC. Article 28.1 thereof states:

A Seafarer who suffers permanent disability as a result of an accident whilst in the employment of the Company regardless of fault, including accidents occurring while travelling to or from the ship, and whose ability to work as a seafarer is reduced as a result thereof, but excluding permanent disability due to willful acts, shall in addition to sick pay, be entitled to compensation according to the provisions of this Agreement. 68 (Emphasis supplied)

A cursory reading of the foregoing unmistakably shows that the parties' CBA only applies to disabilities arising from accidents. In fact, in the cases of Julezza v. Orient Line Philippines, Inc., 69Island Overseas Transport Corp. v. Beja, 70 and Filstar Maritime Corp. v. Rosete, 71 which involved the same provision of the JSU/AMOSUP CBA, this Court uniformly held that the said provision only applies to injuries resulting from an accident. Thus, if the injury or disability of the seafarer was not proven to have been the result of an accident, the latter's claim for disability benefits should be based on the POEA-SEC and not the CBA.

In this case, the CA hastily concluded that respondent figured in an accident based on the latter's mere allegation that he slipped and snapped his back on April 27, 2013 while the vessel was alongside the port of Singapore despite the absence of Master's Report, Accident Report, or any medical report, proving that he actually suffered an accident. Notably, even the Medical Certificate 72 dated March 24, 2014 issued by respondent's own doctor, made no mention that he was involved in an accident while on board petitioner' s vessel. Verily, as there is dearth of evidence to prove that he suffered an injury due to an accident, the provision on disability benefit under the CBA finds no application in this case. Instead, respondent's disability benefits should be based on the POEA-SEC, which entitles him to US$60,000.00 equivalent to Grade 1 disability grading.

Entitlement to sickness

In addition to respondent's disability benefits, Section 20 (A) 73 of the POEA-SEC provides that he is entitled to his sickness allowance equivalent to his basic salary but not to exceed 120 days, as well as to the reimbursement of his medical and transportation expenses.

Accordingly, this Court affirms the award of sickness allowance in his favor amounting to US$5,528 (computed at US$1,382x4) or its peso equivalent at the time of payment, including the reimbursement of his medical and transportation expenses in the total amount of P577,938.00. 74

Attorney's fees and legal interest.

On the matter of attorney's fees, Article 2208 of the New Civil Code provides that attorney's fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer's liability laws. Attorney's fees are also recoverable when the defendant's act or omission has compelled the plaintiff to incur expenses to protect his interest. 75 Such conditions being present in this case, this Court sustains the award of attorney's fees equivalent to ten percent (10%) of the total monetary awards in favor of respondent.

Lastly, this Court deems it proper to impose a legal interest rate of six percent (6%) per annum on the monetary awards from the date of finality of this Resolution until full payment pursuant to Nacar v. Gallery Frames. 76

WHEREFORE, premises considered, the Decision dated August 30, 2016 and the Resolution dated November 22, 2016 of the Court of Appeals in CA-G.R. SP No. 142450 are AFFIRMED with MODIFICATION. Petitioners MOT Barko Manila, Inc. and/or Mitsubishi Ore Transport Co., Inc. are ORDERED to jointly and severally pay the party-respondent, Nerissa V. Delamide, the following:

1. US$60,000 as total and permanent disability benefits;

2. US$5,528 as sickness allowance;

3. P577,938.00 as reimbursement for medical and transportation expenses; and

4. Ten percent (10%) of total monetary awards as attorney's fees.

In addition, all monetary awards shall earn an interest rate of six percent (6%) per annum from the finality of this Resolution until fully paid.

SO ORDERED."Lopez, M., J., on official leave.

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

 

Footnotes

*The Resolution allowing the substitution; rollo, p. 115.

1.Id. at 3-29.

2.Penned by Associate Justice Priscilla J. Baltazar-Padilla (Ret.), with Associate Justices Remedios A. Salazar-Fernando and Socorro B. Inting, concurring; CA rollo, pp. 411-425.

3.Id. at 472-473.

4.Penned by Commissioner Romeo L. Go, with Presiding Commissioner Gerardo C. Nograles, concurring; id. at 297-308.

5.Penned by Labor Arbiter Lilia S. Savari; id. at 208-219.

6.Id. at 32.

7.Id.

8.Id. at 32-33.

9.Id. at 33, 48.

10.Id. at 33.

11.Id.

12.Id. at 49.

13.Id. at 50.

14.Id. at 51.

15.Id. at 52.

16.Id. at 53-54.

17.Id. at 55.

18.Id. at 30.

19.Id. at 149.

20.Id.

21.Id. at 219.

22.Id. at 297-307.

23.Id. at 322-323.

24.Id. at 425.

25.Rollo, at 96-97.

26.Id. at 115.

27.Id. at 21.

28.Id. at 14-16.

29.Id. at 11.

30.Id. at 28.

31.Id. at 109-110.

32.Id. at 107.

33.Vergara v. Hammonia Maritime Services, Inc., 588 Phil. 895, 908 (2008).

34.Gargallo v. Dohle Seafront Crewing (Manila), Inc., 769 Phil. 915, 926-927 (2015).

35.Philasia Shipping Agency Corp. v. Tomacruz, 692 Phil. 632, 646 (2012).

36.678 Phil. 938 (2011).

37.Jebsens Maritime, Inc. v. Undag, id. at 948-949.

38.Malicdem v. Asia Bulk Transport Phils., Inc., G.R. No. 224753, June 19, 2019.

39.Caraan v. Grieg Philippines, Inc., G.R. No. 252199, May 5, 2021.

40.Dionio v. ND Shipping Agency and Allied Services, Inc., 838 Phil. 953, 969 (2018).

41.CA rollo, p. 48.

42.Id. at 47.

43.Id. at 46.

44.Section 2. COMMENCEMENT/DURATION OF CONTRACT. —

A. The employment contract between the employer and the seafarer shall commence upon actual departure of the seafarer from the Philippine airport or seaport in the point of hire and with a POEA approved contract. It shall be effective until the seafarer's date of arrival at the point of hire upon termination of his employment pursuant to Section 16 of this Contract.

45.636 Phil. 240 (2010).

46.De Andres v. Diamond H Marine Services & Shipping Agency, Inc., 813 Phil. 746, 765 (2017).

47.Supra note 38.

48.Marlow Navigation Phils. v. Quijano, G.R. No. 234346, August 14, 2019.

49.Hubilla, et al. v. HSY Marketing Ltd. Co., et al., 823 Phil. 358, 384 (2018).

50.Id.

51.Jebsens Maritime, Inc. v. Babol, 722 Phil. 828, 838 (2013).

52.Jebsen Maritime, Inc. v. Ravena, 743 Phil. 371, 387 (2014).

53.Aldaba v. Career Philippines, Ship-Management, Inc., 811 Phil. 486, 498 (2017).

54.Magsaysay Maritime Corp. v. Heirs of Fritz D. Buenaflor, G.R. No. 227447, June 23, 2020.

55.De Leon v. Maunlad Trans, Inc., 805 Phil. 531, 540 (2017).

56.Skippers United Pacific, Inc. v. Lagne, G.R. No. 217036, August 20, 2018.

57.Magat v. Interorient Maritime Enterprises, Inc., 829 Phil. 570, 581 (2018).

58.CA rollo, p. 48.

59.Id. at 49.

60.Id. at 50.

61.Id. at 51.

62.Saarni, H., Pentti, J., & Pukkala, E. (2002). Cancer at Sea: A Case-Control Study among Male Finnish Seafarers. Occupational and Environmental Medicine, 59 (9), 613-619. Accessed on https://www.jstor.org/stable/27731765 last October 12, 2021.

63.CA rollo, p. 37.

64.Id. at 37-38.

65.Id. at 53-54.

66.Rollo, pp. 48-49.

67.See Pastrana v. Bahia Shipping Services, G.R. No. 227419, June 10, 2020.

68.Rollo, pp. 10-11.

69.G.R. No. 225190, July 29, 2019.

70.774 Phil. 332 (2015).

71.677 Phil. 262 (2011).

72.CA rollo, pp. 53-54.

73.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. x x x 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 tit to work or the degree of disability has been assessed by the company-designated physician. The period within which the seafarer shall be entitled 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.

The seafarer shall be entitled to reimbursement of the cost of medicines prescribed by the company-designated physician. In case of treatment of the seafarer is on an out-patient basis as determined by the company-designated physician, the company shall approve the appropriate mode of transportation and accommodation. The reasonable cost of actual traveling expenses and/or accommodation shall be paid subject to liquidation and submission of official receipts and/or proof of expenses.

74.See CA rollo, p. 219.

75.Atienza v. Orophil Shipping International Co., Inc., 815 Phil. 480, 508 (2017).

76.716 Phil. 267, 283 (2013).