FIRST DIVISION
[G.R. No. 248962. July 6, 2021.]
EDUARDO T. TABUNGGAO, petitioner, vs.OCEAN PROSPERITY MANNING & MANAGEMENT CORPORATION, ET AL., respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJuly 6, 2021which reads as follows: HTcADC
"G.R. No. 248962 (Eduardo T. Tabunggao v. Ocean Prosperity Manning & Management Corporation, et al.). — This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the Decision 2 dated August 28, 2018 of the Court of Appeals of Cebu City (CA) in CA-G.R. CEB-SP No. 11374, which reinstated the Decision 3 dated September 2, 2016 of the Labor Arbiter (LA), dismissing the complaint of petitioner Eduardo Tabunggao (Eduardo) and directing the parties to comply with the third-doctor rule under the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC).
Facts of the Case
On August 26, 2014, Ocean Prosperity Manning & Management Corporation, acting on behalf of its principal, Zeppemfeld Services GMBH (respondents), hired Eduardo as Chief Engineer for a term of six months. On November 13, 2014, while onboard the vessel, Eduardo was assisting in the transporting of a cover plate to be installed in the vessel's Central Cooler System. The cover plate was hoisted by a crane. To lower the cover plate, one of the chain blocks holding it was slowly released. However, the cover plate swayed unexpectedly causing it to swing down directly on Eduardo's right foot. Eduardo received immediate medical treatment onboard the vessel, but he needed to be further examined. Thus, he was brought to a clinic in Guatemala, where he was subjected to an x-ray examination and a cast on his injured foot was applied. Results of the x-ray showed that he had a fractured bone on his right foot. The physicians further recommended his rest to prevent further displacement of the bone. As a result, Eduardo was recommended for medical repatriation. 4
On January 2015, Eduardo was medically repatriated. He was immediately placed under the care of the company-designated physicians, where he was initially diagnosed for "Fracture, transverse, non-displaced, 2nd metacarpal, right foot." 5 The company designated physicians advised that Eduardo undergo physical therapy sessions. In a medical assessment dated March 2, 2015, it stated that "the affected foot showed good bone healing and physical examination did not show any swelling or inflammation." 6 Eduardo was still recommended to undergo physical therapy. 7
In an assessment dated May 25, 2015, the company-designated physicians opined that the "CT scan imaging of his right foot showed the presence of the fracture line with good bone healing." 8 The assessment further stated that Eduardo claimed to still experience pain on his foot. Thus, he was recommended to do further physical therapy and to return for medical check-up on June 30, 2015. 9 In a medical opinion dated June 20, 2015, the company-designated physicians rated his conditions with an interim assessment at Grade 13 based from his medical consultation on May 25, 2015. 10
Respondents claimed that Eduardo did not return to the company-designated physicians on June 30, 2015 for his medical check-up. Without Eduardo returning to the company-designated physicians, the latter issued a final assessment based on Eduardo's last consultation on May 25, 2015. In an assessment dated July 7, 2015, or 177 days later from Eduardo's repatriation, the company-designated physicians found Eduardo's condition to be rated at Disability Grade 13 or the "slight atrophy of the calf leg muscles without apparent shortening or joint lesion or disturbance of weight bearing line." 11
Eduardo claimed that he still had trouble in walking. As a result, he sought the medical opinion of another physician. In an assessment dated October 14, 2015, Eduardo's physician found him unfit to resume sea duties because is he permanently disabled. Eduardo's physician opined that "he is unable to tolerate prolonged walking and standing. He has not regained his usual capacity." 12 With the assessment from his personal physician, Eduardo claimed entitlement to permanent and total disability benefits and filed a complaint against respondents with the National Labor Relations Commission (NLRC).
Ruling of the Labor Arbiter
In a Decision 13 dated September 2, 2016, the LA dismissed the complaint of Eduardo without prejudice. The LA held that pursuant to the provisions of the POEA-SEC and the NLRC En Banc Resolution No. 8-14, 14 parties are directed to seek the opinion of a third doctor to determine the appropriate assessment for the injury of Eduardo. 15 The dispositive portion reads:
WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the complaint without prejudice for being prematurely filed. Parties are directed to seek the opinion of a third doctor to determine the matter.
SO ORDERED.16 (Emphasis in the original)
Ruling of the National Labor Relations Commission
Eduardo filed an appeal with the NLRC. In a Decision 17 dated June 30, 2017, the NLRC vacated and set aside the Decision of the LA. Eduardo was awarded permanent and total disability benefits in the amount of US$60,000.00 and attorney's fees. 18
Ruling of the Court of Appeals
Respondents filed a Petition for Certiorari19 with the CA under Rule 65 of the Rules of Court. In its Decision 20 dated August 28, 2018, the CA reversed the ruling of the NLRC and reinstated the Decision of the LA. The CA held that the NLRC erred in awarding permanent and total disability benefits to Eduardo. In view of the conflicting assessments of the company-designated physician and Eduardo's physician, parties should seek the opinion of the third doctor to settle the issue on disability grading and compensability pursuant to the provisions of the POEA-SEC. The duty to secure the opinion of the third doctor belongs to the employee asking for disability compensation. In this case, with Eduardo having failed to comply with his duty, the CA found that the LA ruled correctly in dismissing the complaint and directing the parties to refer the issue on Eduardo's condition to a third doctor. 21
Proceedings before this Court
Petitioner's Arguments
Eduardo filed an appeal by certiorari with this Court under Rule 45 of the Rules of Court. He argued that the CA erred in ordering the parties to seek the opinion of a third doctor. The POEA-SEC provides that the opinion of the third doctor must be mutually agreed upon by the seafarer and company. As the parties never came to an agreement, Eduardo argued that he had the right to file a labor complaint and that its filing was not premature. He stressed that it has become the duty of the adjudicating body to weigh the evidence presented by both parties. 22 Furthermore, Eduardo claimed that he is entitled to permanent and total disability benefits because he continues to suffer pain on his right foot on prolonged use. He argued that his physician even found him unfit to work as a seafarer and permanently disabled. He was also unable to return to the same work that he used to do for more than 120 days from his repatriation. 23 Finally, Eduardo claimed entitlement to his sickness allowance because he was not paid by respondents from his repatriation on 11 January 2015 until the issuance of the final assessment on July 7, 2015. He argued that attorney's fees should also be awarded because he incurred expenses to protect his interest. 24
Respondent's Comment
In the Comment, 25 respondents argued that the petition should be dismissed outright because Eduardo raised questions of fact. Respondents emphasize that a petition under Rule 45 is limited to the review of legal issues. 26 Anent the issue on disability compensation, the companies reiterate the CA decision that there must be a referral to a third doctor pursuant to the provisions of the POEA-SEC. As the POEA-SEC is part of the contractual relation between the employer-employee, compliance with the third doctor rule is mandatory. Considering that Eduardo failed to comply with provision in seeking the opinion of a third doctor, he is not entitled to claim disability benefits. 27 Moreover, the companies argued that Eduardo's deliberate non-reporting to the company-designated physician on June 30, 2015 forfeited his right to claim for benefits. 28
Ruling of the Court
As a rule, the Court does not entertain questions of fact and limits its review to errors of law committed by the lower courts. 29 In exceptional cases, the Court may resolve factual issues when the lower courts have conflicting findings. 30 Here, the NLRC's findings are different from the LA's and the CA's. Accordingly, the Court deems it proper to take cognizance of the instant petition.
The issues raised by the parties mainly seek to resolve Eduardo's degree of disability and the amount of compensation he is entitled to receive when there are conflicting medical assessments. Considering that the employment contract between Eduardo and respondents was executed on August 26, 2014, the provisions on disability compensation shall be governed by the 2010 POEA-SEC which is deemed incorporated in the parties' employment contract. 31
Section 20-A of the 2010 POEA-SEC 32 sets out the procedures of compensation and benefits for a work-related injury or illness of a seafarer which occurred during the term of contract. Under the section, when a seafarer is medically repatriated and/or received medical treatment, the company-designated physician issues a final assessment as to the seafarer's medical status. This serves as basis whether or not the seafarer is entitled to disability compensation. Seafarers, however, are not precluded from seasonably seeking the opinion of their personal physician if they disagree with the diagnosis of the company-designated physicians. 33 On the occasion of conflicting assessments of the company-designated physician and the seafarer's personal physician, Section 20-A (3) of the 2010 POEA-SEC provides for a dispute settlement by referring the matter to a third doctor mutually agreed upon by the employer and the seafarer. The third doctor's findings shall be final and binding on both parties. The foregoing is the law between the parties 34 which requires mandatory compliance. 35
We cannot subscribe to Eduardo's position that, in view of the parties' failure to mutually agree on a third doctor, he is entitled to file the labor complaint and insist on the assessment of his personal physician. As discussed, the provisions of the POEA-SEC is the law between the parties which entails respective obligations to be fulfilled by both the employer-company and the seafarer. In relation to the third doctor rule, We note that before the parties could agree to a third doctor, the seafarer is obligated to first notify the employer-company: (1) of the conflicting assessment issued by the seafarer's physician; 36 and (2) of the intention to resolve the conflict by the referral to a third doctor. 37 Only after upon such full disclosure and demand to be referred to a third doctor does the employer-company's duty to activate the third doctor provision arise. 38 Here, prior the filing of the labor complaint with the LA, We find no allegation or proof that Eduardo notified respondents of the conflicting assessment issued by his personal physician or his intention to refer the matter to a third doctor. In fact, he does not dispute the LA and CA's observations of such failure and merely anchors his claim for full disability benefits based on the assessment issued by his physician. Eduardo's failure to comply with his part in the contractual obligation to the third doctor rule militates against his claim. Thus, in the absence of a third doctor's opinion, it is the medical assessment of the company-designated physician that should prevail. 39
Here, respondents' physicians issued on July 7, 2015, or 177 days from Eduardo's repatriation, an assessment on his condition with Disability Grade 13 which was based from his last consultation on 25 May 2015. 40 While no assessment had been issued within 120 days from Eduardo's repatriation due to continued medical treatment, We find the extension of the 120-day period reasonable. In Magsaysay Mitsui O.S.K. Marine, Inc. v. Buenaventura, 41 the extension of the initial 120-day period was justified by the seafarer's need for further therapy and rehabilitation treatment. In Elburg Shipmanagement, Inc. v. Quiogue, Jr., 42 guidelines were set out stating that sufficient justification of medical treatment beyond 120 days, but within 240 days, include instances where the seafarer is required further medical treatment. In this case, Eduardo's treatment extended beyond 120 days because he continued to feel pain in his injured foot. The extension of his treatment may be explained by the improvement of his conditions. Eduardo himself quoted in his Petition the opinion of the company-designated physician dated June 20, 2015 stating that should "he respond favorably to the treatment, prognosis is good, with the ability to return to his previous work as a Chief Engineer." 43 This Court does not find such opinion arbitrary as it is undisputed through the company-designated physician's reading of x-ray and CT scan examinations that Eduardo had been healing from his fracture after months of treatment and physical therapy. 44 On record, Eduardo's conditions had been assessed at Grade 13 as of his last reporting. Due to his failure to return for his medical check-up on June 30, 2015, this Grade 13 disability assessment is controlling.
Finally, We hold that respondent companies are solidarily liable to pay Eduardo disability benefits corresponding to the Grade 13 disability assessment pursuant to the provisions 45 of the Migrant Worker's Act of 1995, as amended by Republic Act No. 10022 Captain Saldy Villaflor should not be held liable together with the respondent companies as he is neither a corporate officer or director of said companies.
WHEREFORE, the Decision dated August 28, 2018 of the Court of Appeals in CA-G.R. CEB-SP No. 11374 is SET ASIDE. Respondent companies Ocean Prosperity Manning & Management Corporation and Zeppemfeld Services GMBH are held solidarily liable to pay petitioner Eduardo T. Tabunggao disability benefits amounting to US$3,360.00 or its Philippine Peso equivalent in accordance with the Disability Grade 13 assessment. Said award shall earn an interest of six percent (6%) per annum from finality of this Resolution until full satisfaction.
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. 4-26.
2. Penned by Associate Justice Marilyn B. Lagura-Yap, with the concurrence of Associate Justices Gabriel T. Ingles and Emily R. Aliño-Geluz; id. at 32-40.
3. Penned by Labor Arbiter Asuncion Grace J. Divinagracia; CA rollo, pp. 243-245.
4.Id. at 54-55; rollo, pp. 44-45.
5.Rollo, p. 12.
6.Id. at 13.
7.Id.
8.Id.
9.Id. at 13-14.
10.Id. at 14.
11.Id. at 14-15.
12.Id. at 15.
13. Penned by Labor Arbiter Asuncion Grace J. Divinagracia; CA rollo, pp. 69-71.
14. National Labor Relations and Commission En Banc Resolution No. 08-14 (Series of 2014), November 12, 2014.
15. CA rollo, pp. 70-71.
16.Id. at 71.
17. Penned by Commissioner Julie C. Rendoque, with the concurrence of Presiding Commissioner Violeta Ortiz-Bantug; id. at 54-65.
18.Id. at 64.
19.Id. at 4-43.
20.Supra note 2.
21.Rollo, pp. 36-40.
22.Id. at 16-22.
23.Id. at 22-24.
24.Id. at 24-25.
25.Id. at 42-70.
26.Id. at 48-50.
27.Id. at 51-55.
28.Id. at 56.
29.Dionio v. ND Shipping Agency and Allied Services, Inc., 838 Phil. 953, 965 (2018).
30.Paleracio v. Sealanes Marines Services, Inc., 835 Phil. 997, 1006-1007 (2018).
31.Philippine Transmarine Carriers, Inc. v. San Juan, G.R. No. 207511, October 5, 2020.
32. Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships, POEA Memorandum Circular No. 010-10, October 26, 2010.
33.Magsaysay Mitsui Osk Marine, Inc. v. Buenaventura, 823 Phil. 245, 253 (2018).
34.Id. at 253-254.
35.Philippine Transmarine Carriers, Inc. v. San Juan, G.R. No. 207511, October 5, 2020.
36.INC Navigation Co. Philippines, Inc. v. Rosales, 744 Phil. 774, 788 (2014).
37.Id.
38.Ranoa v. Anglo-Eastern Crew Management Phils., Inc., G.R. No. 225756, November 28, 2019.
39.Abosta Shipmanagement Corporation v. Delos Reyes, 821 Phil. 760, 769-770 (2018).
40.Rollo, p. 33.
41. 823 Phil. 245 (2018).
42. 765 Phil. 341 (2015).
43.Rollo, p. 14.
44.Id. at 13.
45. Section 7.