SECOND DIVISION
[G.R. No. 254188. June 28, 2021.]
MST MARINE SERVICES (PHILS.), INC., THOME SHIP MANAGEMENT PTE., LTD. and/or CAPTAIN GABRIEL ALFREDO V. ILLENBERGER, petitioners,vs. CORNELIO C. LATOJA, JR., respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 28 June 2021 which reads as follows:
"G.R. No. 254188 (MST Marine Services (Phils.), Inc., Thome Ship Management Pte., Ltd. and/or Captain Gabriel Alfredo V. Illenberger v. Cornelio C. Latoja, Jr.). — Petitioners MST Marine Services (Phils.), Inc., Thome Ship Management Pte., Ltd. and/or Captain Gabriel Alfredo V. Illenberger seek affirmative relief from the Court and pray that the Court of Appeals' Decision 1 dated June 8, 2020 and Resolution 2 dated October 23, 2020 be set aside and a new one entered dismissing the claim of respondent Cornelio C. Latoja, Jr. for total and permanent disability benefits. In the alternative, petitioners pray that should respondent be found entitled to disability benefits, the same be limited to Grade 11 disability rating. 3
Petitioners maintain that the company-designated doctors only assessed respondent with Grade 11 disability rating. There is no reason to doubt this medical evaluation as the same enjoys the presumption of validity absent any showing that said evaluation was given fraudulently. It was also the company-designated doctor who treated and handled respondent's case from the beginning, hence, that doctor was in the best position to assess respondent's condition. 4 The Court of Appeals also erred when it granted total and permanent disability benefits to respondent on ground that the company-designated doctor allegedly failed to give him a final assessment within the 120/240-day period. Non-observance of the period will not automatically entitle a seafarer to permanent and total disability benefits. In any case, the company-designated doctor issued the Grade 11 rating within the 240-day period. In any event, respondent did not deny the existence of the said medical assessment. More, respondent failed to move for referral to a third doctor prior to the filing of his complaint, thus, the medical assessment of the company-designated doctor became final. 5
The petition utterly lacks merit.
To begin with, not being a trier of facts, it is not the Court's function to analyze or weigh evidence all over again in view of the corollary legal precept that the factual findings of the Court of Appeals are conclusive and binding on this Court. By way of exception though, the Court may proceed to probe and resolve factual issues where, as in this case, the factual findings of the Court of Appeals are contrary to the findings of the Panel of Voluntary Arbitrators (PVA). 6
The employment of seafarers is governed by the contracts they sign at the time of their engagement. So long as the stipulations in said contracts are not contrary to law, morals, public order, or public policy, they have the force of law as between the parties. While the seafarer and his employer are governed by their mutual agreement, the Philippine Overseas Employment Administration (POEA) Rules and Regulations require that the POEA-Standard Employment Contract (SEC) be integrated in every seafarers contract. 7 Respondent's employment then is governed by the contract he executed with petitioners, the POEA-SEC, and their Collective Bargaining Agreement (CBA).
The POEA-SEC, as amended by POEA Memorandum Circular No. 10, series of 2010, the governing law at the time respondent was employed in 2015, sets the procedure for disability claims, viz.:
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:
1. The employer shall continue to pay the seafarer his wages during the time he is on board the ship;
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 dental, 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 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.
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. (Emphasis supplied)
On compensable diseases, the 2010 POEA-SEC states:
SECTION 32-A. OCCUPATIONAL DISEASES. —
For an occupational disease and the resulting disability or death to be compensable, all of the following conditions must be satisfied:
1. The seafarer's work must involve the risks described herein;
2. The disease was contracted as a result of the seafarer's exposure to the described risks;
3. The disease was contracted within a period of exposure and under such other factors necessary to contract it; and
4. There was no notorious negligence on the part of the seafarer.
Here, prior to assuming his duties as Chief Cook on board petitioners' vessel on May 29, 2015, respondent was declared fit to work after undergoing Pre-Employment Medical Examination (PEME) with the company-designated doctor. Respondent showed no signs of any spinal injuries before he boarded the vessel. His back pain and limited lumbar movement started only after he slipped on his buttocks on board petitioners' vessel while performing his duties as Chief Cook. The pain persisted way beyond the time he got medically repatriated. Considering that respondent was asymptomatic prior to boarding and that his symptoms began to manifest only after that particular incident on board petitioners' vessel and persisted way beyond his medical repatriation, it is reasonable to claim a causal relationship between petitioner's illness and his work as Chief Cook. In Magat v. Interorient Maritime Enterprises, Inc.8 the Court held that Magat was entitled to permanent disability benefits when after passing his PEME, he developed heart ailment, thus:
The above findings of the Labor Arbiter and the NLRC clearly show how petitioner acquired or developed his illness during the term of his contract. The CA reversed the NLRC decision by ruling that nothing in the records, documentation or medical report, show that petitioner contracted his illness aboard M/T North Star, however, despite such, the fact that petitioner was able to pass his PEME without any finding that he had a pre-existing heart ailment before boarding the vessel and later on finding, after the termination of his contract that he has acquired the said heart ailment, one can conclude that such illness developed while he was on board the same vessel. The work assigned to the petitioner (i.e., painting the ship's pump room), poor diet, advanced age, the stressful nature of his employment, and repeated hiring of his services by respondents, would all lead to the conclusion that the work of petitioner as Able Seaman caused or contributed even to a small degree to the development or aggravation of complainant's heart disease. In determining whether a disease is compensable, it is enough that there exists a reasonable work connection. It is sufficient that the hypothesis on which the workmen's claim is based is probable since probability, not certainty is the touchstone. 9
The PVA, however, held that respondent's spinal spondylosis is not a work related illness being degenerative in nature. 10
We do not agree.
Spinal disc degeneration/desiccation or osteoarthritis is a compensable disease under the POEA-SEC. The Court explained in Centennial Transmarine, Inc. v. Quiambao11 that degenerative disc disease is a spinal condition caused by the breakdown of the intervertebral discs which results in the loss of flexibility and ability to cushion the spine. When discs degenerate, the vertebral bodies become closer together and this increased bone on bone friction causes the wearing a way of protective cartilage and results in the condition known as osteoarthritis. The degenerating discs place excessive stress on the joints of the spine and the supporting ligaments, which, overtime, can lead to the formation of osteoarthritis. Osteoarthritis is a stage of degenerative disc disease. Spondylosis, on the other hand, is a term used to describe osteoarthritis of the spine.
Under Section 32-A (21) of the 2010 POEA-SEC, osteoarthritis is listed as an occupational disease when contracted in any occupation involving any of the following: (a) joint strain from carrying heavy loads, or unduly heavy physical labor, as among laborers and mechanics; (b) minor or major injuries to the joint; (c) excessive use or constant strenuous usage of a particular joint, as among sportsmen, particularly those who have engaged in the more active sports activities; (d) extreme temperature changes (humidity, heat and cold exposures); and ( e) faulty work posture or use of vibratory tools.
As Chief Cook, petitioner was constantly exposed to strenuous work. His responsibilities uncontestably included several strenuous physical activities such as: (a) butchering and preparing meat, fowl, and fish; (b) supervision and coordination of activities in the kitchen, its personnel, and preparation of the meals aboard the ship; (c) inspection of galley and galley equipment; and (d) requisition of supplies which entails lifting and carrying of provisions. 12 To carry out these duties, he had to stand for most of the day, constantly moved around, carry heavy provisions to and from the kitchens. He was doing these tasks when he suddenly slipped and hit his buttocks which caused him persistent pain. Such strenuous activities could have also led to or at least aggravated respondent's condition, thus making it a compensable work-related illness. In Talaroc v. Arpaphil Shipping Corporation, 13 the Court ordained that while the nature of the seafarer's illness is degenerative, the same is compensable:
In similar vein, the Court finds that the NLRC correctly ruled that petitioner's illnesses were work-related.
As a rule, a seafarer shall be entitled to compensation if he suffers from a work-related injury or illness during the term of his contract. Under the 2010 POEA-SEC, a "work-related illness" is defined as "any sickness as a result of an occupational disease listed under Section 32-A of this Contract with the conditions set therein satisfied." Corollarily, Section 20 (A) (4) thereof further provides that ''[t]hose illnesses not listed in Section 32 of this Contract are disputably presumed as work-related."
Records reveal that petitioner's back pain — generalized disc bulge and disc protrusion, non-listed illnesses — occurred only while he was on board the vessel. While said illness was claimed to be degenerative in nature, the company doctor herself acknowledged that it may be aggravated or precipitated by heavy work or lifting/pushing or pulling of heavy objects, a manual task basically demanded from a seafarer. Since there was no proof to show that these activities werenot performed by petitioner while he was on board or were not part of his duties while the ship was at berth as advanced by respondents, it can be safely concluded that the arduous nature of his job may have caused or at least aggravated his condition more so since he was declared fit to work prior to his deployment, hence, work-related. Jurisprudence provides that "[p]robability, not the ultimate degree of certainty, is the test of proof in compensation proceedings. And probability must be reasonable; hence it should, at least, be anchored on credible information," as in this case. 14 (Emphases supplied)
Applying Talaroc to the present case, respondent's illness is considered work-related.
Petitioners, however, argue that respondent is only entitled to Grade 11 disability benefits in accordance with the final assessment given by the company-designated doctor. They further assert that respondent failed to move for referral to a third doctor prior to the filing of his complaint which made the medical assessment of the company-designated doctor final.
The arguments must fail.
It bears stress that respondent repeatedly asked petitioners for copies of his medical assessment and referral to a third doctor. This request was formally expressed in his letter dated August 5, 2016 sent to petitioners. But petitioners simply ignored his pleas. Respondent was neither given a copy of his medical reports and medical assessment nor was he referred to a third doctor.
On the need for a final and definitive medical assessment, Ampo-on v. Reinier Pacific International Shipping, Inc.15 decreed:
The responsibility of the company-designated physician to arrive at a definite assessment within the prescribed periods necessitates that the perceived disability rating has been properly established and inscribed in a valid and timely medical report. To be conclusive and to give proper disability benefits to the seafarer, this assessment must be complete and definite; otherwise, the medical report shall be set aside and the disability grading contained therein shall be ignored. As case law holds, a final and definite disability assessment is necessary in order to truly reflect the true extent of the sickness or injuries of the seafarer and his or her capacity to resume work as such.
Failure of the company-designated physician to arrive at a definite assessment of the seafarer's fitness to work or permanent disability within the prescribed periods and if the seafarer's medical condition remains unresolved, the law steps in to consider the latter's disability as total and permanent. (Emphasis supplied)
Gamboa v. Maunlad Trans, Inc.16 stressed that without a valid final and definitive assessment from the company-designated doctors within the mandatory 120/240-day period, as in this case, the law already steps in to consider a seafarer's disability as total and permanent.
In Gere v. Anglo-Eastern Crew Management Phils., Inc., 17 the Court clarified that that the company-designated physician must not only "issue" a final medical assessment of the seafarer's medical condition. He or she must also — and the Court cannot emphasize this enough — "give" his or her assessment to the seafarer concerned, that is, the seafarer must be fully and properly informed of his or her medical condition. The results of his or her medical examinations, the treatments extended to the seafarer, the diagnosis and prognosis, if needed, and, of course, the seafarer's disability grading must be fully explained to him or her by no less than the company-designated physician.
Here, Marine Medical Services only issued a ''private and confidential" medical report addressed to petitioners. As earlier stated, despite requests from respondent, neither Marine Medical Services nor petitioners had given a copy of the assessment, or of any medical report for that matter, to him. As in Gere, this medical assessment cannot be regarded as anything more than an internal communication between the company-designated doctor and petitioners.
In sum, no final and definitive assessment was issued regarding respondent's illnesses. Again, without a valid final and definitive assessment from the company-designated physician, respondent's disability, by operation of law, became permanent and total. 18
As for the alleged failure of respondent to request for referral to a third doctor, suffice it to state that the third doctor rule does not apply when there is no final and definitive assessment by the company-designated doctor. 19 On this score, the Court's pronouncement in Chan v. Magsaysay Corporation, 20 is apropos:
The mandatory third-doctor
Under Section 20(A)(3) of the 2010 POEA-SEC, "[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 provision refers to the declaration of fitness to work or the degree of disability. It presupposes that the company-designated physician came up with a valid, final and definite assessment as to the seafarer's fitness or unfitness to work before the expiration of the one hundred twenty (120)-day or two hundred forty (240)-day period.
As stated, there is no occasion here for the mandatory third-doctor referral precisely because a complete, final, and definite medical assessment from the company-designated physician is absent, aside from the fact that the so-called October 29, 2013 medical assessment,if at all it exists, was not actually relayed to petitioner. To repeat, it is the issuance and the corresponding conveyance to the employee of the final medical assessment by the company-designated physician that triggers the application of Section 20(A)(3) of the 2010 POEA-SEC.
In Orient Hope Agencies, Inc. v. Jara, the Court held that the third-doctor rule does not apply when there is no valid final and definitive assessment from a company-designated physician, as in this case. (Emphases supplied)
All told, we hold that the Court of Appeals did not commit any reversible error when it reversed the erroneous, nay, baseless findings and conclusions of the PVA and granted respondent's claim for total and permanent disability benefits.
Considering that respondent was impelled to litigate to protect his rights and interests, he is entitled to attorney's fees equivalent to ten percent (10%) of the total monetary award in accord with the Court's pronouncement in Pastor v. Bibby Shipping Philippines, Inc.21
WHEREFORE, the petition is DENIED. The Decision dated June 8, 2020 and Resolution dated October 23, 2020 of the Court of Appeals in CA-G.R. SP No. 159709 are AFFIRMED. Petitioners MST Marine Services (Phils.), Inc. and Thome Ship Management Pte., Ltd., are ordered to jointly and severally PAY respondent Cornelio C. Latoja, Jr. the following:
1. US$60,000.00 or its Philippine Peso equivalent at the time of payment for total and permanent disability rating in accordance with the 2010 Philippine Overseas Employment Administration-Standard Employment Contract;
2. Ten percent (10%) of the monetary award as attorney's fees; and
3. Six percent (6%) legal interest per annum on the total monetary award from finality of this Resolution until fully paid. 22
SO ORDERED." (J. Lopez., J., designated additional member per Special Order No. 2822 dated April 7, 2021)
By authority of the Court:
(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court
Footnotes
1. Penned by Associate Justice Fernanda Lampas Peralta and concurred in by Associate Justice Myra V. Garcia-Fernandez and Associate Justice Ruben Reynaldo G. Roxas, rollo, pp. 17-42.
2.Id. at 43-44.
3.Id. at 47-84.
4.Id. at 57-67.
5.Id. at 67-70.
6. See Status Maritime Corporation v. Sps. Delalamon, 740 Phil. 175, 189 (2014).
7. See C.F. Sharp Crew Management, Inc. v. Legal Heirs of the Late Godofredo Repiso, 780 Phil. 645, 665-666 (2016).
8. 829 Phil. 570 (2018).
9.Id. at 583.
10.Rollo, p. 246.
11. 763 Phil. 411, 420-421 (2015).
12.Rollo, pp. 166-167.
13. 817 Phil. 598 (2017).
14.Id. at 615-616.
15. G.R. No. 240614, June 10, 2019.
16. G.R. No. 232905, August 20, 2018.
17. 830 Phil. 695, 706(2018).
18. See Orient Hope Agencies, Inc. v. Jara, 832 Phil. 380, 407 (2018).
19. See Magsaysay Mol Marine, Inc. v. Atraje, 836 Phil. 1061, 1064 (2018).
20. G.R. No. 239055, March 11, 2020.
21. G.R. No. 238842, November 19, 2018.
22.Esteva v. Wilhelmsen Smith Bell Manning, Inc., G.R. No. 225899, July 10, 2019.