South Agencies, Inc. v. Asuncion

FIRST DIVISION

[G.R. No. 243106. June 16, 2021.]

SOUTHFIELD AGENCIES, INC., petitioner, vs. JESUS C. ASUNCION, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated June 16, 2021 which reads as follows:

"G.R. No. 243106 (Southfield Agencies, Inc., Petitioner, v. Jesus C. Asuncion, Respondent.) — This Petition 1 seeks to reverse and set aside the Decision 2 dated 27 July 2018 and Resolution dated 07 November 2018 of the Court of Appeals (CA) in CA-G.R. SP No. 152590, which dismissed the Petition for Certiorari(with Very Urgent Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction)3 filed by petitioner Southfield Agencies, Inc. (petitioner).

Antecedents

On 17 December 2015, respondent Jesus C. Asuncion (respondent) was hired as an oiler by petitioner, for and on behalf of its foreign employer, Abacus Ship Management Ltd., for the vessel M/V La Solognais. After undergoing the required Pre-Employment Medical Examination (PEME), 4 respondent was given a "fit for sea duty" recommendation and subsequently deployed for a nine (9)-month contract with a basic monthly salary of US$604.00. 5

After three (3) months, or on 22 March 2016, respondent suddenly felt a click on his back accompanied by mild to moderate pain while lifting a heavy manhole cover aboard the vessel. The following day, he was brought to a hospital in Poland where he underwent magnetic resonance imaging (MRI) and had an X-ray taken. On 30 March 2016, respondent was declared unfit for work and was later medically repatriated. And upon arrival in Manila, he was immediately brought to St. Luke's Medical Center and subjected to physiotherapy. 6

Less than a month thereafter, or on 27 April 2016, respondent was rushed to Dr. Jose Tamayo Medical Center in Biñan, Laguna due to severe pain in the "L/S" segment of his spine. 7 He later underwent further medical evaluation conducted by the company designated physicians at the Marine Medical Services on 04 July 2016, 06 July 2016 and 28 September 2016. 8

Thereafter, on 19 October 2016, the company designated orthopedic surgeon, Dr. Ferdinand R. Bernal (Dr. Bernal), found respondent to be suffering Grade 8 disability due to "moderate rigidity of or 2/3 loss of motion or lifting power of the trunk." In light of the said assessment, petitioner initially offered respondent the equivalent compensation of US$33,203.00 based on his partial disability rating. However, respondent rejected the same and insisted on his entitlement to full disability benefits, prompting him to consult on 16 December 2016 an orthopedic physician of his choice, Dr. Manuel Fidel Magtira (Dr. Magtira), who found him permanently unfit to resume his work as a seafarer. 9

On 17 January 2017, respondent sent petitioner a letter manifesting his willingness to undergo another test/examination to settle the conflicting assessments of Dr. Bernal and Dr. Magtira. During the grievance hearing before the Associated Marine Officers and Seamen's Union of the Philippines (AMOSUP), respondent maintained his request to refer his condition to a third doctor, but petitioner remained steadfast in its offer to pay respondent his Grade 8 disability compensation pursuant to the final assessment of the company designated physician, Dr. Bernal. 10

The parties likewise failed to reach a settlement during the mediation processing before the National Conciliation and Mediation Board (NCMB). 11 Hence, the case was referred to a Panel of Arbitrators (PA). SDAaTC

Ruling of the Panel of Arbitrators

In its Decision, 12 dated 19 May 2017, the PA held that petitioner is liable to pay respondent full disability benefits, thus:

WHEREFORE, premises considered, judgment is hereby rendered ORDERING herein respondents (herein, petitioner) to pay the complainant (herein, respondent) the disability benefits, under the CBA in the amount of US$98,848.00, and attorney's fees in the amount equivalent to 10% of the recoverable amount.

Other claims for moral, nominal and exemplary damages, are hereby dismissed, for lack of merit.

SO ORDERED. 13

The PA held that the opposing medical reports of the parties' respective physicians should have been resolved through the appointment of a third physician. However, since petitioner ignored respondent's request for the appointment of a third doctor, it effectively waived the right to challenge the evaluation made by respondent's own physician. Hence, the PA gave credence to the evaluation of Dr. Magtira, who found respondent unfit to assume the same job and thus found him entitled to permanent total disability benefits. 14 It awarded respondent the amount of US$98,848.00 as full compensation under the parties' Collective Bargaining Agreement (CBA). 15

Ruling of the CA

In its Decision, the CA sustained the PA, thus:

WHEREFORE, premises considered, the petition is hereby DENIED. Accordingly, the Decision dated 19 May 2017 and the Resolution dated 1 August 2017, respectively, of the Panel of Arbitrators of the National Conciliation and Mediation Board (Panel of Arbitrators), are hereby AFFIRMED.

SO ORDERED. 16

Agreeing with the PA, the CA noted that petitioner failed to comply with the requirement of referring respondent's condition to a third doctor for evaluation despite respondent's request for the same. Said omission constituted a breach of the 2010 Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC), which should be taken against petitioner. 17 Given such breach, the suggested disability rating given by petitioner's designated physician (namely Grade 8 — moderate rigidity or 2/3 loss of motion or lifting power of the trunk) should not be automatically upheld. Examining the disability assessment of Dr. Bernal and that made by Dr. Magtira, the CA found the first evaluation to be merely interim in nature because respondent continued to require medical treatments even after said assessment. 18 On the other hand, the CA found that Dr. Magtira's Medical Report properly supported respondent's claim for permanent disability considering that his condition then had practically ended his earning capacity as a seafarer. The CA also awarded attorney's fees, noting that respondent was forced to litigate to protect his interest. 19

Feeling aggrieved, petitioner filed the instant Petition.

Issue

The singular issue to be resolved in this Petition is whether or not the CA erred in awarding respondent total and full permanent disability benefits and attorney's fees.

Ruling of the Court

We deny the Petition.

It is petitioner's postulation that the medical evaluation made by its own physician Dr. Bernal should prevail over that of respondent's private physician Dr. Magtira. First, Dr. Bernal's partial disability grading equivalent to a benefit of US$33,203.00 is consistent with Section 32 of the 2010 POEA-SEC which mandates the determination of disability benefits based solely on the disability gradings given by the company doctor and not the number of days a seafarer undergoes treatment. 20 And second, respondent belatedly submitted his request for the appointment of a third physician on 17 January 2017 or three (3) months after Dr. Bernal issued his medical report. 21

The schedule of disabilities in the CBA, if there is one, or the POEA-SEC, should be the primary basis for the determination of a seafarer's degree of disability. However, the POEA-SEC and the CBA cannot be read in isolation from the Labor Code and the Amended Rules on Employee Compensation (AREC) implementing Title II, Book IV of the Labor Code. Otherwise, the disability rating of the seafarer will be completely at the mercy of the company-designated physician, without redress, should the latter fail or refuse to give one. 22 While the assessment of a company-designated physician vis-à-vis the schedule of disabilities under the POEA-SEC serves as the basis for compensability of a seafarer's disability, it remains subject to the periods prescribed in the law. 23 Indeed, the medical assessment of the company-designated physician is not the alpha and the omega of the seafarer's claim for permanent and total disability. To become effective, such assessment must be issued within the bounds of the authorized 120-day period or the properly extended 240-day period. 24

In Elburg Shipmanagement v. Quiogue, the Court laid out the following rules to determine a seafarer's claim for disability: acEHCD

1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;

2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;

3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g., seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and

4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification. 25

Based on the foregoing, two (2) requisites must concur to determine a seafarer's condition: 1) the assessment must be issued within the 120/240 window, and 2) the assessment must be final and definitive. 26 The assessment from the company-designated physician must be definite and timely issued. Otherwise, there is no valid medical assessment to be contested and it is the law that operates to declare a seafarer's resulting disability to be total and permanent. 27 To be sure, a definite declaration by the company-designated physician is an obligation, the abdication of which transforms the temporary total disability to permanent total disability, regardless of the disability grade. 28

Here, records disclosed that after respondent's repatriation on 31 March 2016, he underwent treatment and was under the care of the company-designated physician. Hence, the company-designated physician had 120 days therefrom or until July 29, 2016 within which to issue his medical assessment of respondent's condition. Dr. Bernal, the company designated orthopedic surgeon, gave respondent a Grade 8 disability rating ("moderate rigidity of or 2/3 loss of motion or lifting power of the trunk") on 19 October 2016, or 202 days from respondent's repatriation on 31 March 2016. As it is not disputed that respondent required further treatment due to his persistent back pain, Dr. Bernal was justified in issuing his assessment beyond the 120-day period but within the 240-day window.

Be that as it may, We agree with the CA's holding that Dr. Bernal's assessment was not definitive. 29 To be conclusive, the medical assessment or report of the company-designated physician must be complete 30 and definite 31 for the purpose of ascertaining the degree of the seafarer's disability benefits. 32 We have held that medical assessment was merely tentative in certain instances such as: when it did not show how the disability assessment was arrived at; 33 when it did not explain in detail the progress of the seafarer's treatment and the approximate period needed for him to fully recover; 34 when the seafarer still underwent treatment after the company-designated physician issued his final assessment, 35 or even beyond the 240-day period; 36 and when the company-designated physician's report is contradictory such as when it stated that the seafarer suffered a partial permanent disability but also indicated that he was unfit for duty. 37

In this case, We agree with the CA that Dr. Bernal's Grade 8 partial disability rating was merely tentative as it is undisputed that respondent continued to undergo treatment even after Dr. Bernal issued his assessment on 19 October 2016 due to persistent back pain. 38 Moreover, Dr. Bernal's assessment did not set out in detail how he arrived at respondent's disability rating. His entire report reads:

October 19, 2016

Pandiman Philippines, Inc.

 

Suggested disability grading:

If patient is entitled to a disability, his suggested disability grading is Grade 8 — moderate rigidity or 2/3 loss of motion or lifting power of the trunk.

sgd.39 (Emphasis Supplied)

Not only did Dr. Bernal show uncertainty in his assessment by employing the conditional word "if," he also did not explain how he arrived at his assessment, nor did he describe in detail the progress of respondent's treatment and the approximate period needed for him to reach full recovery. Where the company physician's medical report is incomplete and inappropriately issued, it shall be set aside and the disability grading stated therein disregarded. 40 A declaration of disability in the medical assessment, without more, can by no means be considered complete, final and definitive. 41 In this case, the absence of such a definite declaration by Dr. Bernal thus transformed respondent's temporary total disability to permanent total disability, regardless of the disability grade given.

Consequently, the CA rightly upheld the award of permanent total disability benefits in favor of respondent. HSAcaE

We also do not subscribe to petitioner's claim that respondent belatedly submitted his request for the appointment of a third physician to evaluate his condition. Contrary to petitioner's contention, the POEA-SEC does not fix a specific period within which the parties may seek the opinion of a third doctor, as they may do even during the mandatory conference before the labor tribunals. 42 The National Labor Relations Commission En Banc Resolution No. 008-14 43 in fact directs all Labor Arbiters during the mandatory conference to give the parties a period of fifteen (15) days within which to secure the services of a third doctor and an additional period of thirty (30) days for the third doctor to submit his/her reassessment.

Respondent, in this case, twice sought the assessment of a third physician. Prior to the mandatory conference before the labor tribunals, respondent initially sent petitioner a letter on 17 January 2017, requesting for the appointment of a third physician to settle the conflicting assessments of his condition. He reiterated this request during the grievance hearing before the AMOSUP, but also to no avail. 44 Clearly, respondent seasonably sought the evaluation of a third physician but petitioner ignored the same.

Such refusal of petitioner to heed respondent's plea for the appointment of a third doctor was fatal to its cause. The duty to secure the opinion of a third doctor belongs to the employee asking for disability benefits. He must actively or expressly request for it. 45 However, once the seafarer expressly conveys this request, the company thereafter carries the burden of commencing the process for the referral to a third doctor commonly chosen by the parties. 46 The company's failure to do so shall render the assessment of the company-designated physician non-binding. 47 With petitioner's failure to refer respondent's condition for assessment by a third physician, it cannot now insist on the evaluation of its own doctor.

Even if we were to examine the assessment made by the parties' respective doctors, We would still uphold the award of permanent total disability based on Dr. Magtira's Medical Report which exhaustively discussed why his condition had ended his career as a seafarer. Dr. Magtira's Medical Report reads:

xxx xxx xxx

Physical examination revealed a fairly developed, fairly nourished patient (patient). There is tenderness along the spinous spaces, and para spinal muscles of the lumbar spine. Trunk motion is limited by pain in all directions. Muscle strength is 5/5 on both lower extremities. Numbness is felt on lateral side of his right thigh. Deep tendon reflexes are normoactive. Straight leg raising is positive.

Result of MRI of the lumbo sacral spines done at I.scan dated: 12/15/2016:

IMPRESSION:

1. Small chronic posterior disc protrusion at L4-5 and L3-4 without nerve roots compression.

2. Straightened lumbar lordosis.

Mr. Asuncion continues to experience back pain. His back is stiff, making it difficult for him to bend and pick up objects from the floor. He could not life (sic) heavy objects. Sitting or standing for a long time, makes his discomfort worse. He has difficult (sic) running, and climbing up or going down the stairs. The demands of a Seaman's work are heavy. Mr. Asuncion has lost his pre-injury capacity and is not capable of working at his previous occupation. He is not permanent disable (sic).

xxx xxx xxx

Mr. Asuncion sustained his back injury aboard the M/V LA SOLOGNAIS where he works as an oiler. He represented with symptoms of nerve compression that has severely affected his capacity to perform activities that he used to do. These radical signs and symptoms are often associated with disc herniation or spinal stenosis. Patients with radiculopathy have well described pain, the distribution of which depends on the particular nerve root involved. His symptoms as confirmed by the MRI, is due to a Lumbar muscular spasm. Lumbosacral instability. However, pathology at other level is also possible. The herniated disc (itself) generally does not cause pain. The pain is usually caused when the disc presses against a nerve, and the nerve becomes inflamed and swollen.

Because of the chronicity of the patient's symptoms, it is best to consider him a permanently disabled. x x x Having him resume his regular duties will only lead to frequent absences from illness, underperformance, and lost time at work. It is also necessary that in order to avoid the risk of a more serious disability. Mr. Asuncion should permanently modify his activities and lifestyle.

xxx xxx xxx. 48 (Emphasis supplied)

It will be noted that in disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity. Total disability refers to an employee's inability to perform his or her usual work. It does not require total paralysis or complete helplessness. On the other hand, permanent disability is a worker's inability to perform his job for more than 120 days or 240 days, if the seafarer required further medical attention warranting the extension of the temporary total disability period, regardless of whether or not he loses the use of any part of his body. 49

In this case, while respondent's injury was limited to his lumbar spine, his persistent back pain and inability to lift heavy objects or to run or climb up or down had effectively disabled him from earning wages as an oiler or in work of similar nature for which he was trained. His loss of earning capacity consequently entitles him to permanent and total disability benefits. HESIcT

We thus affirm the CA and PA's award of P98,848.00 total and permanent disability benefits in favor of respondent based on Article 20.1.4 50 of the CBA. We likewise uphold the award of ten percent (10%) attorney's fees in light of petitioner's unjustified denial of respondent's valid claim which thus compelled him to litigate to protect his rights. 51 However, pursuant to jurisprudence, 52 a six percent (6%) legal interest is hereby imposed on the total judgment award from finality of the Decision rendered by the Panel of Arbitrators until full payment thereof.

WHEREFORE, premises considered, the instant Petition for Review on Certiorari is hereby DENIED. Accordingly, the Decision dated 27 July 2018 and Resolution dated 07 November 2018 of the Court of Appeals in CA-G.R. SP No. 152590 are hereby AFFIRMED with MODIFICATION, in that six percent (6%) legal interest per annum is imposed on the total judgment award from finality of Decision rendered by the Panel of Arbitrators dated 19 May 2017 until full payment thereof.

SO ORDERED."

By authority of the Court:

(SGD.) LIBRADA C. BUENADivision Clerk of Court

By:

MARIA TERESA B. SIBULODeputy Division Clerk of Court

Footnotes

1. Rollo, pp. 3-44.

2. Id. at 50-61; penned by Associate Justice Stephen C. Cruz and concurred in by Associate Justices Romeo F. Barza and Carmelita Salandanan Manahan of the First (1st) Division, Court of Appeals, Manila.

3. CA rollo, pp. 3-34.

4. Id. at 111.

5. Rollo, p. 51.

6. Id. at 52.

7. Id.

8. Id.

9. Id.

10. Id. at 53.

11. Id.

12. Id. at 66-84; penned by Voluntary Arbitrator Romeo A. Young with Voluntary Arbitrator Herminigildo C. Javen, concurring and Voluntary Arbitrator Gregorio B. Sialsa, dissenting of the Office of the Panel of Voluntary Arbitrators, National Conciliation and Mediation Board-NCR.

13. Id. at 84.

14. Id. at 82-83.

15. Supra at note 13.

16. Id. at 60.

17. Id. at 59.

18. Id. at 57.

19. Supra at note 17.

20. Rollo, pp. 23-24.

21. Id. at 27.

22. Carcedo v. Maine Marine Philippines, Inc., 758 Phil. 166, 184 (2015), G.R. No. 203804, 15 April 2015 [Per J. Carpio].

23. See Orient Hope Agencies, Inc. v. Jara, 832 Phil. 380, 403 (2018), G.R. No. 204307, 06 June 2018 [Per J. Leonen], citing Carcedo v. Maine Marine Philippines, Inc., id. at 187.

24. Elburg Shipmanagement v. Quiogue, 765 Phil. 341, 364 (2015), G.R. No. 211882, 29 July 2015 [Per J. Mendoza].

25. Id. at 362-363.

26. Talaugon v. BSM Crew Service Centre Phils., Inc., G.R. No. 227934, 04 September 2019 [Per J. Lazaro-Javier].

27. Pastor v. Bibby Shipping Philippines, Inc., G.R. No. 238842, 19 November 2018 [Per J. Perlas-Bernabe].

28. Chan v. Magsaysay Maritime Corp., G.R. No. 239055, March 11, 2020 [Per J. Lazaro-Javier], citing Tamin v. Magsaysay Maritime Corporation, 794 Phil. 286, 301 (2016), G.R. No. 220608, 31 August 2016 [Per J. Velasco, Jr.].

29. Rollo, p. 57.

30. See Magsaysay Mol Marine, Inc. v. Atraje, 836 Phil. 1061, 1077 (2018), G.R. No. 229192, 23 July 2018 [Per J. Leonen], citing Olidana v. Jebsens Maritime, Inc., 772 Phil. 234, 245 (2015), G.R. No. 215313, 21 October 2015 [Per J. Mendoza].

31. Id., citing Sunit v. OSM Maritime Services, Inc., 806 Phil. 505, 517-519 (2017), G.R. No. 223035, 27 February 2017 [Per J. Velasco, Jr.].

32. Id. at 1078.

33. See Chan v. Magsaysay Maritime Corp., G.R. No. 239055, 11 March 2020 [Per J. Lazaro-Javier].

34. See Magadia v. Elburg Shipmanagement Philippines, Inc., G.R. No. 246497, 05 December 2019 [Per J. Lazaro-Javier].

35. Id.

36. See Island Overseas Transport Corporation v. Beja, 774 Phil. 332, 339 (2015), G.R. No. 203115, 07 December 2015 [Per J. Del Castillo].

37. See Razonable v. Maersk-Filipinas Crewing, Inc., G.R. No. 241674, 10 June 2020 [Per J. Caguioa].

38. Rollo, p. 57.

39. CA rollo, p. 121.

40. Supra at note 27.

41. Supra at note 33.

42. See Ilustricimo v. NYK-Fil Ship Management, Inc., 834 Phil. 693, 707 (2018), G.R. No. 237487, 27 June 2018 [Per J. Velasco, Jr.].

43. Directing Labor Arbiters to Give Parties 15 Days to Secure the Services of a Third Doctor and 30 Days for Doctor to Submit Reassessment, dated 12 November 2014.

44. Rollo, p. 72.

45. Maersk-Filipinas Crewing, Inc. v. Alferos, G.R. No. 216795, 01 April 2019 [Per J. Bersamin], citing Hernandez v. Magsaysay Maritime Corporation, 824 Phil. 552, 560-561 (2018), G.R. No. 226103, 24 January 2018 [Per J. Peralta].

46. INC Shipmanagement, Inc. v. Rosales, 744 Phil. 774, 786 (2014), G.R. No. 195832, 01 October 2014 [Per J. Brion].

47. Supra at note 42 at 705-706.

48. CA rollo, pp. 165-166.

49. Supra at note 27.

50. 20.1.4 Permanent Medical Unfitness

A seafarer whose disability is assessed at 50% or more or less under the POEA employment Contract shall, for the purpose of this paragraph be regarded as permanently unfit for further sea service in any capacity and entitled to 100% of compensation as follows: x x x US$98,848.00 for ratings x x x.

51. See Magadia v. Elburg Shipmanagement Philippines, Inc., G.R. No. 246497, 05 December 2019 [Per J. Lazaro-Javier].

52. See Talaugon v. BSM Crew Service Centre Phils., Inc., G.R. No. 227934, 04 September 2019 [Per J. Lazaro-Javier]; see alsoNacar v. Gallery Frames, 716 Phil. 267, 283 (2013), G.R. No. 189871, 13 August 2013 [Per J. Peralta].