THIRD DIVISION
[G.R. No. 219923. June 5, 2017.]
PHILIPPINE TRANSMARINE CARRIERS, INC. AND PULLMANTUR SHIP MANAGEMENT, LTD., petitioners,vs. VICENTE C. TALLAFER, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedJune 5, 2017, which reads as follows:
"G.R. No. 219923 (Philippine Transmarine Carriers, Inc. and Pullmantur Ship Management, Ltd. v. Vicente C. Tallafer) — The instant Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Court of Appeals (CA) April 13, 2015 Decision 1 and August 11, 2015 Resolution, 2 which affirmed the Decision dated April 15, 2014 of the Office of the Panel of Voluntary Arbitrators, National Conciliation and Mediation Board — National Capital Region (NCMB-NCR), that ordered Petitioners Philippine Transmarine Carriers, Inc. and Pullmantur Ship Management, Ltd. to pay Respondent Vicente C. Tallafer his total permanent disability compensation and attorney's fees equivalent to ten percent of the total judgment award.
The Procedural and Factual Antecedents
Respondent was hired by Pullmantur Ship Management, Ltd., through Philippine Transmarine Carriers, Inc., (Petitioners) as Second Engineer on board the vessel, TSS Altantic Star. Respondent's work includes maintenance of chemical boiler, watch-keeping and maintenance of auxiliary machineries, purifiers and various pumps. 3
On November 30, 2012, while on board the TSS Altantic Star, respondent consulted with the ship's physician and was found to have "Left Inguinal Hernia". Respondent was referred to a shoreside physician in Panama and was diagnosed with "Symptomatic Left Inguinal Hernia". Thereafter, he was medically repatriated on December 5, 2012 and referred to the company-designated physician. 4
The next day, the company-designated physician diagnosed respondent with Left Inguinal Hernia, Left Varicocele, and Left Epididymitis. On December 13, 2012, he went back to the company-designated physician with complaints of lumbar pain with associated pain and numbness on the left thigh, which he claimed usually occurred after a prolonged standing and weight-bearing. 5
After completing six physical therapy sessions, respondent was re-evaluated by an orthopaedic surgeon. The results revealed "mild spinal canal stenosis and mild to moderate neural foraminal stenosis at the L4-L5 level secondary to a diffuse disc bulge and left facet joint hypertrophy and signs of multi-level disc desiccation", his continued medication and therapy was recommended. 6
Later, or on July 2, 2013, respondent reminded petitioners of his physical therapy sessions since they were stopped last May 24, 2013. He also informed petitioners that he would seek a second opinion for his injury. Thus, on July 25, 2013, respondent consulted Dr. Manuel Fidel M. Magtira (Dr. Magtira). Dr. Magtira found out that respondent had a limping gait with tenderness over the spinal process and para-spinal muscle of lumbar spine. Dr. Magtira declared respondent permanently unfit for sea duties and assessed him to be partially and permanently disabled with Grade 6 impediment. 7
Petitioners, however, opined that the respondent's back pain was neither work-related nor suggestive of a work-injury, but if it was work-related, the disability assessment should only be Grade 8, based in an electronic message dated December 12, 2013. 8
The Ruling of the NCMB-NCR
The NCMB Panel of Arbitrators ruled that respondent was not entitled to disability benefits under the Collective Bargaining Agreement but awarded him Disability Grade 2 benefits of US$60,000 under the POEA Standard Employment Contract (POEA-SEC), viz.:
"WHEREFORE, IN VIEW OF THE ABOVE, judgment is hereby promulgated DIRECTING the respondents, JOINTLY and SEVERALLY, to pay complainant the amount of US$60,000 as disability benefits plus 10% thereof by way of attorney's fees.
FURTHER, respondents are hereby DIRECTED TO PAY the panel its share of the arbitrators' fees in the amount of P35,000, distributed as follows:
|
1. Chairman MVA Jesus S. Silo |
— P15,000.00 |
|
2. Member MVA Leonardo D. Saulog |
— P10,000.00 |
|
3. Member MVA Allan S. Montano |
— P10,000.00 |
|
|
==========9 |
The Ruling of the CA
The CA, in a Decision 10 dated April 13, 2015, affirmed the Decision dated April 15, 2014 of the Office of the Panel of Voluntary Arbitrators, NCMB-NCR. The fallo thereof, provides:
"ACCORDINGLY, the petition is DENIED, and the assailed Decision dated April 15, 2014, AFFIRMED. The prayer for injunctive relief is considered academic.
SO ORDERED." 11
Petitioners filed their Motion for Reconsideration but the same was denied in a Resolution 12 dated August 11, 2015.
Hence, this present Petition.
The Issue
Did the NCMB-NCR and the CA err in ruling that respondent is entitled to permanent and total disability benefits under the POEA-SEC?
The Court's Ruling
The petition has no merit.
We reiterate the rule that only questions of law may be reviewed by this Court in a petition for review on certiorari under Rule 45. A question that invites a review of the factual findings of the lower tribunals is beyond the scope of this Court's power of review and generally justifies the dismissal of the petition, except in cases were there was serious misappreciation of facts on the part of the lower courts.
Let it be stated that the issues raised were factual in nature. Time and again, this Court has ruled that factual findings of the trial court, when adopted and confirmed by the CA, as in this case, are binding and conclusive upon this Court, save for certain exceptions, which are not existent in this case. 13 It bears upon the petitioners to present cogent and justifiable reasons to have Us depart from the said well-established rule. Petitioners failed in this regard.
And even if We consider the factual issues raised, the NCMB-NCR and the CA are one in their factual conclusion that the respondent is entitled to full disability benefits. Here, as correctly observed by the CA, the company-designated physician did not categorically state Private Respondent's degree of disability, whether total or permanent, or his fitness to resume his customary work within the 120 or 240-day treatment period as required by law. Consequently, failure of the company-designated physician to declare whether a seafarer is fit to work or permanently disabled, whether total or permanent, after the lapse of the stated periods and the seafarer is still incapacitated to perform his usual sea duties, a conclusive presumption arises that the latter is totally and permanently disabled. 14
Indeed the company-designated physician made a categorical assessment of respondent's degree of disability as grade 8 through an electronic message but only on December 12, 2012, or 372 days after respondent was repatriated and arrived in the Philippines on December 5, 2012. The 240-day period given for the company-designated physician to make a definitive assessment of respondent's disability had already lapsed.
Consequently, failure of the company-designated physician to declare whether a seafarer is fit to work or permanently disabled, whether total or permanent, after the lapse of the stated periods and the seafarer is still incapacitated to perform his usual sea duties, a conclusive presumption arises that the latter is totally and permanently disabled. 15
As ruled in the case of Alpha Ship Management Corporation v. Calo, 16 it was held that an employee's disability becomes permanent and total when so declared by the company-designated physician, or, in case of absence of such a declaration either of fitness or permanent total disability, upon the lapse of the 120 or 240-day treatment period under Article 192 (c) (1) of the Labor Code and Rule X, Section 2 of the Amended Rules on Employees' Compensation Commission, while the employee's disability continues and he is unable to engage in gainful employment during such period, and the company-designated physician fails to arrive at a definite assessment of the employee's fitness or disability. This is true regardless of whether the employee loses the use of any part of his body or if the injury or disability is classified as Grade 1 under the POEA-SEC. 17
On the matter of attorney's fees, We also affirm the award of 10% of the monetary award pursuant to prevailing jurisprudence. Article 2208 of the New Civil Code allows the recovery of attorney's fees in actions for recovery of wages of laborers and action for indemnity under the employer's liability laws. 18 Attorney's fees are also recoverable when the defendant's act or omission has compelled the plaintiff to incur expenses to protect his interest. 19 Such conditions are present here.
In light of the above disquisition, the NCMB-NCR and the CA correctly ruled that respondent is entitled to his permanent and total disability benefits.
WHEREFORE, the Petition for Review on Certiorari is DISMISSED. The assailed April 13, 2015 Decision and August 11, 2015 Resolution of the Court of Appeals, which affirmed the Decision dated April 15, 2014 of the Office of the Panel of Voluntary Arbitrators, National Conciliation and Mediation Board — National Capital Region, that ordered Petitioners to pay Respondent Vicente C. Tallafer his total permanent disability compensation and attorney's fees equivalent to ten percent (10%) of the total judgment award are hereby AFFIRMEDin toto.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1. Penned by Associate Justice Amy C. Lazaro-Javier and concurred by Associate Justices Celia C. Librea-Leagogo and Melchor Q.C. Sadang, Rollo, pp. 37-63.
2.Rollo, p. 65.
3.Id., at p. 37.
4.Id., at p. 38.
5.Id., at p. 39.
6.Id., at p. 41.
7.Id., at p. 43.
8.Id., at p. 43.
9.Id., at pp. 48-49.
10. Penned by Associate Justice Amy C. Lazaro-Javier and concurred by Associate Justices Celia C. Librea-Leagogo and Melchor Q.C. Sadang, Rollo, pp. 37-63.
11.Rollo, p. 62.
12.Id., at p. 65.
13.People of the Philippines v. Dante dela Peña and Dennis Delima, G.R. No. 207635, February 18, 2015.
14. See the case of Kestrel Shipping Co., Inc., et al. v. Francisco D. Munar, G.R. No. 198501, January 30, 2013.
15. See the case of Kestrel Shipping Co., Inc., et al. v. Francisco D. Munar, G.R. No. 198501, January 30, 2013.
16. G.R. No. 192034, January 13, 2014.
17.Magsaysay Mitsui Osk Marine, Inc., et al. v. Juanito Bengson, G.R. No. 198528, October 13, 2014.
18.Nazareno v. Maersk Filipinas Crewing, Inc., et al., G.R. No. 168703, February 26, 2013.
19.Magsaysay Maritime Corporation, et al. v. Oberto S. Lobusta, G.R. No. 177578, January 25, 2012.