FIRST DIVISION
[G.R. No. 193953. July 27, 2016.]
NYK-FIL SHIP MANAGEMENT, INC. and NYK SHIP MANAGEMENT PTE. LIMITED, petitioners, vs. ROMEO L. NUÑEZ, JR., respondent.
[G.R. No. 193954. July 27, 2016.]
ROMEO L. NUÑEZ, petitioner, vs. NYK-FIL SHIP MANAGEMENT, INC. and NYK SHIP MANAGEMENT PTE. LIMITED, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated July 27, 2016, which reads as follows:
"G.R. No. 193953 — NYK-FIL SHIP MANAGEMENT, INC. and NYK SHIP MANAGEMENT PTE. LIMITED, Petitioners, v. ROMEO L. NUÑEZ, JR., Respondent; G.R. No. 193954 — ROMEO L. NUÑEZ, Petitioner, v. NYK-FIL SHIP MANAGEMENT, INC. and NYK SHIP MANAGEMENT PTE. LIMITED, Respondents. —
These are consolidated petitions for review on certiorari under Rule 45 seeking to set aside the Decision 1 dated August 12, 2010 (the questioned decision) and the Resolution 2 dated September 28, 2010 (the questioned resolution) of the Court of Appeals in CA-G.R. SP No. 112284. The questioned decision modified the National Labor Relations Commission (NLRC) Decision 3 while the questioned resolution denied the parties' respective motions for reconsideration.
On May 10, 2006, Romeo Nuñez, Jr. (Nuñez) entered into a contract of employment with NYK-Fil Ship Management, Inc., for and in behalf of its principal, NYK Ship Management Pte. Limited, to work on board the vessel M/T Gas Diana as a Second Cook with a monthly salary of US$539.00. The contract was for a period of eight months. M/T Gas Diana carried the Liberian flag and had a Collective Bargaining Agreement (CBA) referred to as IBF JSU/AMOSUP-IMMAJ with the Associated Marine Officers & Seamen's Union of the Philippines (AMOSUP) as the sole and exclusive bargaining representative of all Filipino crewmembers.
Prior to his deployment on May 12, 2006, Nuñez underwent a Pre-Employment Medical Examination (PEME) and was declared fit to work by the examining physician. On December 5, 2006, he felt a severe head pain while on board M/T Gas Diana and was brought to a hospital in Korea for medical treatment. The pain subsisted until his repatriation to the Philippines on January 22, 2007.
Nuñez was referred to a Neurologist and ENT Specialist from the Metropolitan Medical Center and was diagnosed to have Submandibular Mass, left. As a consequence, he underwent a Fine Needle Aspiration Biopsy of the left infra-auricular area mass and was shown to have Chronic Sialadenitis which greatly impaired his sense of hearing. He was subjected to a series of laboratory examinations until his surgical operation called Parotidectomy which caused the removal of his parotid gland on May 26, 2007. After his discharge from the hospital on May 30, 2007 and despite receiving periodic treatments and taking the prescribed medication, he never regained his sense of hearing.
Nuñez demanded for permanent and total disability benefits from NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited, but the latter denied it, maintaining that the illness is not work-related. The case was initially brought before the AMOSUP to avail of the grievance machinery under the CBA; however, the grievance proceeding was declared as a deadlock and the case was brought to the NLRC. ASEcHI
On August 29, 2008, the Labor Arbiter issued a Decision stating that the illness of Nuñez is work-related, reasoning as follows:
Notably, the illness of the complainant is work-related. The chronic form of the disease is associated with conditions linked to decreased salivary flow, rather than dehydration. These conditions include calculi, salivary stasis, and a change in the fluid and electrolyte composition of the gland. Hence, it is work-related as it affects the most used part of his body when it comes to his work, his salivary glands. It is because of the nature of his work as 2nd Cook that brought about the impairment in his salivary glands. Likewise, his hearing deficiency which is an effect of his illness rendered [him] also unable to perform his sea duties, as he is unable to perceive instructions effectively. 4
The Labor Arbiter likewise ruled that Nuñez is entitled to total and permanent disability benefits. We quote the pertinent portion of the Labor Arbiter's decision below:
[R]ecords show that complainant's illness lasted for more than 120 days. Complainant suffered illness on December 5, 2006 and until now remains unfit to resume work as a seaman, as the company-designated physician did not declare the latter fit to work after his surgery. This means that, [for] more than a year complainant had been unable to engage in his customary work as 2nd Cook and had been unable to earn a living out of being a seaman. Not being able to engage in the same kind of work for a period of 120 days, therefore, complainant's disability is total and permanent. 5
The Labor Arbiter ordered NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Ltd. to jointly and severally pay Nuñez the amount of US$86,625.00 or its equivalent in Philippine Peso at the prevailing rate of exchange at the time of actual payment representing his disability benefits and attorney's fees. The basis of this award is the rate of compensation provided in the CBA.
NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited filed their Memorandum of Appeal with the NLRC, which affirmed in toto the Labor Arbiter's decision. The NLRC Decision dated September 4, 2009 reads in part as follows:
We agree with the complainant that [as] explicitly provided under Section 20(B)4 of the POEA SEC, ". . . illnesses not listed in Section 32 of this Contract are disputably presumed as work related." Being presumed work-related, the burden of proving otherwise now shifts to the respondents, and this, the latter failed to discharge. . . . .
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The "schedule of disability or impediment for injuries suffered and diseases or illness contracted" under Section 32 of the POEA SEC is only an enumeration of disabilities and their corresponding Grade for the purpose of computing the disability allowance/benefit due a seafarer. Remarkably, it states at the end thereof that "any item in the schedule under Grade 1 shall be considered or shall constitute total and permanent disability. Conversely, said section cannot be construed as an absolute catalog of total and permanent disabilities as regards seafarers. It is worthy to mention that Article 192 of the Labor Code of the Philippines defines Permanent Total Disability as a Temporary total disability lasting continuously for more than one hundred twenty [120] days, except as otherwise provided for in the Rules. ITAaHc
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As of now, there has been neither a declaration nor a certification from the company designated physician, annexed to or alleged in, the respondents' pleadings and papers that herein complainant is fit-to-work or permanently disabled. Applying the ruling of the Supreme Court in the Vergara case, the temporary total disability has transformed to a disability of a permanent nature entitling herein complainant to the benefits he reverently prays for. 6
The dispositive portion of the NLRC Decision reads:
Having been adjudged as suffering from permanent and total disability, We hereby resolve to grant herein complainant his disability benefits in the amount of US$78,750. We also [affirm] the award of 10% attorney's fees, complainant-appellee having been compelled to litigate in order for him to collect what is due him under the law. 7
NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited filed a motion for reconsideration but the NLRC denied the same. Thereafter, Nuñez filed a Motion for Issuance of Writ of Execution, which the NLRC granted. NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited, represented by Pandiman Philippines, Inc., deposited to the NLRC the judgment award, and Nuñez received it.
Acting on the petition for certiorari under Rule 65 brought before it, the Court of Appeals promulgated the questioned decision on August 12, 2010, which affirmed the NLRC, except for the monetary award. Having established that Nuñez's illness is work-related, the Court of Appeals ruled that he is entitled to permanent and total disability benefits. In addition, the Court of Appeals held that for the CBA rate to be applicable, the disability should pertain to an accident, and not to an illness or sickness. In this case, there is no showing of an accident. Thus, the Court of Appeals applied the POEA Standard Employment Contract rate instead of the CBA rate, and reduced the amount due to Nuñez. We quote the questioned Decision below:
Anent the monetary award, We do not however agree with the labor tribunals' finding pertaining to disability benefit in the amount of US$78,750.00 pursuant to the IBF JSU/AMOSUP-IMMAJ CBA. Art. 28.1 of the CBA in relation to Appendix 3 thereof pertains to disability as a result of an accident, and not an illness or sickness. Patently, the POEA-SEC is the one applicable to govern the amount of liability of petitioners concerning permanent and total disability benefits. Thus, under Appendix 1 (Schedule of Disability or Impediment for Injuries Suffered and/or Illness Contracted) of the Standard Employment Contract, an award of US$60[,]000 (US$50,000 multiplied by 120%) representing the maximum disability benefits or the equivalent of a Grade one (1) Impediment is proper.
The award of attorney's fees equivalent to ten (10%) percent of monetary award shall be maintained. It must be stressed that private respondent engaged the services of a lawyer to vindicate his right to claim for his disability benefits which were being arbitrarily withheld from him by petitioners. Had it not been for the denial of his claim, private respondent could not have been impelled to engage the services of a counsel to prosecute his claims in court, for which he is presumed to have incurred costs. 8 (Citations omitted.) CHTAIc
The Court of Appeals thus affirmed the NLRC decision with modification in that NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited were ordered to jointly and severally pay Nuñez permanent and total disability benefits of US$60,000.00 or its peso equivalent at the prevailing rate of exchange at the time of payment. The 10% attorney's fees were also modified based on the amount of the monetary award.
Both parties filed their respective motions for reconsideration but the Court of Appeals denied the same. In the questioned resolution, the Court of Appeals noted NYK-Fil Ship Management, Inc.'s manifestation that Nuñez had already collected the total amount of US$86,625.00 pursuant to the NLRC Decision dated September 4, 2009, which amount was lowered to US$66,000.00 in the questioned Decision, representing disability benefit of US$60,000.00 and 10% thereof as attorney's fees.
Hence, these consolidated petitions respectively filed by NYK-Fil Ship Management, Inc. and NW Ship Management Pte. Limited on one hand, and Nuñez on the other hand.
In G.R. No. 193953, NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited argue that the Court of Appeals committed patent and reversible error in affirming the finding of the NLRC that the illness of Nuñez is work-related; that Nuñez is entitled to total permanent disability benefits; and that Nuñez is entitled to attorney's fees.
A close reading of their agreement would show that NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited have raised issues and presented arguments that are essentially factual in nature, and have failed to convince us that the Court of Appeals committed patent and irreversible error in affirming the NLRC's findings, especially in light of the following pronouncement of this Court:
It is elementary that this Court is not a trier of facts and this rule applies with greater force in labor cases. Questions of fact are for the labor tribunals to resolve. Only errors of law are generally reviewed in petitions for review on certiorari criticizing the decisions of the CA. Indeed, findings of fact of quasi-judicial bodies like the NLRC, as affirmed by the CA, are generally conclusive on this Court. . . . . 9
The issue of whether the illness is work-connected to entitle Nuñez to disability benefits and attorney's fees has been affirmatively resolved by the Labor Arbiter, the NLRC, and the Court of Appeals. The following rules govern if there is a claim for total and permanent disability benefits by a seafarer:
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 EATCcI
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. 10
The Court of Appeals affirmed the Labor Arbiter's findings that the nature of work of Nuñez as cook brought about the impairment of the salivary glands and his hearing deficiency made him unable to perceive instructions effectively, rendering him incapacitated to perform his sea duties. Also, the Court of Appeals considered that Nuñez underwent a thorough PEME, was declared fit for sea duty, and was suffered to work with M/T Gas Diana and repatriated due to medical reasons. The appellate court ruled that his illness can be considered to have been acquired during his employment as he irrefutably experienced severe headaches while on board M/T Gas Diana. In fact, he was brought to a hospital in Korea for Medical treatment.
The Court of Appeals considered that when Nuñez signed off on January 22, 2007 from M/T Gas Diana for medical treatment because of the illness he developed while on board the vessel, he was subjected to a series of medical examinations. He was operated on, discharged from the hospital, and despite continuous medication, never regained his sense of hearing. Also, the company-designated physician failed to issue a certification of fitness to work after Nuñez was discharged from the hospital on May 30, 2007, and even after the lapse of more than seven months since his last day of treatment. Thus, since the pain in the affected area persisted, the Court of Appeals declared that Nuñez correctly resorted to the medical expertise of an independent doctor, Dr. Armando San Luis, who concluded that Nuñez was permanently disabled. Since Nuñez exceeded the maximum 240-day medical treatment from his repatriation on January 22, 2007 and was unable to perform his customary work as a seaman, the Court of Appeals held that an award of permanent and total disability was called for.
We agree with the Court of Appeals that Nuñez is entitled to total and permanent disability benefits. As we have said in Fil-Star Maritime Corp. v. Rosete: 11
A total disability does not require that the employee be completely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue his or her usual work and earn from it. On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days. What is crucial is whether the employee who suffers from disability could still perform his work notwithstanding the disability he incurred. . . . .
Therefore, it is fitting that respondent be entitled to permanent total disability benefits considering that he would not able to resume his position as a maritime officer and the probability that he would be hired by other maritime employers would be close to impossible. Indeed, a sight-impaired maritime applicant cannot stand in the same footing as his healthy co-applicant.
We hold that it was not erroneous for the Court of Appeals to affirm the findings of the NLRC as the same are supported by the evidence on record. As to G.R. No. 193953, therefore, we see no need to disturb the factual findings and conclusions in the questioned Decision and Resolution, and deny the petition.
In G.R. No. 193954, Nuñez seeks the review of the questioned Decision and Resolution on the following grounds:
I. The Court of Appeals committed serious error of law in ignoring the primordial purpose of a collective bargaining agreement to provide improved benefits of seafarers.
II. The Honorable Court of Appeals committed grave abuse of discretion in modifying the decision of the NLRC and awarded the maximum benefits provided in the POEA contract instead of the maximum benefits provided in the CBA. 12 DHITCc
Nuñez contends that NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited are liable to pay him the CBA rate in the amount of US$78,750.00. He avers that the Court of Appeals committed grave abuse of discretion when it awarded the maximum benefits provided in the POEA contract instead of the maximum benefits provided in the CBA. Nuñez claims that the primordial purpose of a CBA is to grant improved benefits than those provided in the POEA Standard Employment Contract. Thus, if the latter does not distinguish as to the cause of disability, the CBA should likewise not distinguish whether the same arises from an illness or an accident.
Nuñez avers that the policy is to provide ample protection and support to the lowly worker who is not on equal footing with the employer and that the rule is that all doubts should be resolved in favor of labor. Nuñez alleges that the CBA applies to illness being the synonym of sickness and does not apply exclusively to injury. He concludes that to uphold the intent of the POEA Contract, the Labor Code, and the CBA to give full protection to labor, the injury/accident stated in the CBA should cover likewise disability due to illness.
NYK-Fil Ship Management, Inc. and NYK Ship Management Pte. Limited, for their part, aver that Article 28.1 of the CBA is very clear that it shall only operate if the disability is a result of an accident, which presupposes an unforeseen event similar to a fortuitous event, which is unexpected. The record of this case is totally empty of any evidence that Nuñez was involved in any accident while on board the vessel and while under their employ. The burden of proof is on the party who makes the allegations, and Nuñez failed to prove the occurrence of an accident; thus, he is not entitled to disability benefits under the CBA.
The issue or question of law for our consideration in G.R. No. 193954 is whether Nuñez is entitled to the benefits under the POEA Standard Contract, or to those provided in the CBA.
We hold that the Court of Appeals was correct in applying the rate under the POEA Standard Contract instead of that under the CBA.
The IBF JSU/AMOSUP-IMMAJ CBA provides:
Article 28: Disability
28.1 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 wilful acts, shall be in addition to sick pay, be entitled to compensation according to the provisions of this Agreement. 13
In this case, Nuñez has remained in a state of disability that has become permanent and total considering that no certification, compliant with the POEA-SEC and the Labor Code, was issued within the 120/240-day period. However, records do not show that Nuñez acquired his disability as a result of an accident. The language of the CBA is plain and clear so it should not be subject to interpretation, and this provision clearly makes the CBA inapplicable in this case.
We again find the ruling in Fil-Star Maritime Corp. v. Rosete14 to be instructive, and quote the relevant portions below:
The next issue to be resolved is whether respondent's entitlement to permanent total disability benefits should be based on the CBA or his POEA-SEC which integrated the 2000 Amended Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels. cEaSHC
The Court holds that respondent is entitled to claim permanent total disability benefits based on his POEA-SEC and not based on their CBA as earlier ruled by the L.A. and later affirmed by the CA.
The CBA provisions on disability are not applicable to respondent's case because Article 28 thereon specifically refers to disability sustained after an accident. Article 28 of the ITF-JSU/AMOSUP CBA specifically states that:
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Respondent failed to show that the blurring of his left eye was caused by an accident on board the ship. Thus, Article 28 of the CBA cannot be used to compute his disability benefits.
Accordingly, what should govern the computation of his disability benefits is the POEA-SEC incorporating the 2000 POEA Amended Standard Terms and Conditions. Under Section 20 (B), paragraph 6, of the 2000 POEA Amended Standard Terms and Conditions, to wit:
SECTION 20. COMPENSATION AND BENEFITS
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B. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS IAETDc
The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows:
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6. In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of this Contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted. . . . .
Based on the schedule of disability under Section 32 of the 2000 POEA Amended Standard Terms and Conditions, permanent total disability is classified as Grade 1. Thus, respondent's disability benefit should be computed as follows:
Grade 1: US$50,000.00 x 120% = US$60,000.00
As to the award of attorney's fees, the Court likewise affirms the ruling that respondent is entitled to it as provided under Article 2208 of the Civil Code:
Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:
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(8) In actions for indemnity under workmen's compensation and employer's liability laws;
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In the case at bench, respondent was compelled to litigate in order to claim disability benefits from the petitioners. Thus, the award of attorney's fees is justified pursuant to Article 2208 (8) of the Civil Code.
We find and so hold that the Court of Appeals did not err in affirming the NLRC and in modifying the monetary award, in accordance with the provisions of the POEA-SEC and the Labor Code, and with the rulings of this Court. Also, considering that Nuñez was forced to litigate and incur expenses to protect his right and interest, we likewise affirm the award of attorney's fees in the amount of US$6,000.00 or an amount equivalent to 10% of his claim. 15
WHEREFORE, the petitions in G.R. Nos. 193953 and 193954 are DENIED.
The letter dated July 7, 2016 of Aurora A. Mua, Records Officer III, Officer-in-Charge, Archives Section, Judicial Records Division, Court of Appeals, Manila, transmitting the Court of Appeals rollo of CA G.R. SP No. 112284 consisting of 378 pages with attached Supreme Court petition for review on certiorari is NOTED.
SO ORDERED." DcHSEa
Very truly yours,
(SGD.) EDGAR O. ARICHETADivision Clerk of Court
Footnotes
1. Rollo (G.R. No. 193953), pp. 31-40; penned by Associate Justice Josefina Guevara-Salonga with Associate Justices Mariflor P. Punzalan Castillo and Samuel H. Gaerlan concurring.
2. Id. at 43-44.
3. Id. at 163-169.
4. Id. at 263.
5. Id. at 264-265.
6. Id. at 165-168.
7. Id. at 168.
8. Id. at 39.
9. Magsaysay Maritime Services v. Laurel, 707 Phil. 210, 220 (2013).
10. Elburg Shipmanagement Phils., Inc. v. Quiogue, Jr., G.R. No. 211882, July 29, 2015.
11. 677 Phil. 262, 274 (2011).
12. Rollo (G.R. No. 193954), p. 4.
13. CA rollo, p. 195.
14. Supra note 11 at 274-276.
15. Belchem Phils., Inc. v. Zafra, Jr., G.R. No. 204845, June 15, 2015.