SECOND DIVISION
[G.R. No. 218927. September 14, 2016.]
RAMONCITO R. TOLENTINO, petitioner, vs. PANDISHIP CORP. AND/OR LIQUIMAR TANKER MANAGEMENT AND/OR DONNIE P. GUERRERO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated 14 September 2016 which reads as follows:
"G.R. No. 218927 — Ramoncito R. Tolentino v. Pandiship Corp. and/or Liquimar Tanker Management and/or Donnie P. Guerrero
This is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure assailing the December 9, 2014 Decision 1 and the June 18, 2015 Resolution 2 of the Court of Appeals (CA) in CA G.R. SP No. 130504.
The Antecedents:
Respondent Pandiship Corporation, for and in behalf of its foreign principal, respondent Liquimar Tanker Management, hired petitioner Ramoncito R. Tolentino (Tolentino) to work as Assistant Cook on board the vessel "M/T IASONAS" for a period of nine (9) months, with a monthly basic salary of US$530.00, as provided under the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC), dated February 28, 2011. Prior to the execution of the said contract, Tolentino underwent the required Pre-employment Medical Examination (PEME) conducted by respondents' designated physicians and was certified "Fit to Work." 3
Sometime in June 2011, Tolentino complained of shoulder and back pains which he claimed started when he felt a snap followed by a sharp pain on his left shoulder and back while carrying food provisions on board the vessel. Upon the advice of the vessel's Captain, he requested for repatriation for medical treatment. Tolentino was then repatriated and arrived in Manila on July 14, 2011. Upon arrival, he was immediately referred to the respondents' company designated doctors at the Physician Diagnostic Services Center. Tolentino underwent three (3) x-ray examinations which all yielded normal results. An MRI was also performed on him. As advised, he underwent physical therapy starting on September 2, 2011 under the supervision of Dr. Reynaldo Matias. After seven (7) sessions, his condition did not improve. Thus, Tolentino consulted Dr. Leonido Castillo, the company-designated specialist, who evaluated his condition for months. Inspite of the further evaluation and tests, the pain still persisted. This prompted Tolentino to consult Dr. Marcelino Cadag (Dr. Cadag), an independent physician from Loyola International Multi Specialty Clinics. Dr. Cadag's diagnosis reads: "Supraspinatus Tendon Tear, Left; Superior Labrum Antero-Posterior Tear, Left." 4
Based on Dr. Cadag's prognosis, Tolentino's condition would prevent him from performing his duties as a seafarer and, therefore, unfit for sea duty. As such, he was advised to undergo arthroscopic rotator cuff and glenoid labral repair. Tolentino then informed respondents of his physical condition as diagnosed by Dr. Cadag and prayed that he be paid permanent total disability benefits. Respondents, however, denied his claim. 5
Respondents disputed Dr. Cadag's findings averring that Tolentino's disability was only assessed as partial. They only offered him compensation equivalent to Grade 11 as assessed by the company-designated physicians in accordance with the disability grading under the POEA schedule of disabilities as he was unable to raise his arm more than halfway from horizontal to perpendicular. Respondents insisted that the assessment of their company doctors were accurate, competent and reflected the extent of Tolentino's incapacity. 6 aDSIHc
Ruling of the Labor Arbiter
In its August 30, 2012 Decision, 7 the Labor Arbiter (LA) denied Tolentino's claim for permanent total disability benefits. It gave more probative weight to the declaration of partial permanent incapacity based on the periodic and documented assessment of the company-designated physicians over the medical certificate issued by Dr. Cadag after just a single consultation. Thus, the LA disposed the case as follows:
WHEREFORE, all the foregoing premises considered, respondents Pandiship Corporation and/or Liquimar Tanker Management are ordered jointly and severally to pay complainant Ramoncito R. Tolentino the Philippine peso equivalent at the time of actual payment of SEVEN THOUSAND FOUR HUNDRED SIXTY FIVE US DOLLARS (US$7,465.00), as partial permanent disability benefits.
All other claims are dismissed for lack of merit.
SO ORDERED. 8
Aggrieved, Tolentino appealed before the National Labor Relations Commission (NLRC).
Ruling of the NLRC
In its February 28, 2013 Resolution, 9 the NLRC affirmed in toto the LA decision. It noted that Tolentino consulted Dr. Cadag on May 2, 2012, after he had already filed his complaint on February 3, 2012. The NLRC noted that Dr. Cadag's medical certificate did not indicate any disability grading. It gave no weight to the said medical findings especially that Tolentino had shown stubbornness when he ignored the recommendation for steroid infiltration on October 24, 2011. 10 The NLRC concluded that the assessment of the company-designated physician should prevail considering that the parties did not seek the opinion of a third doctor. 11
Tolentino moved for reconsideration but his motion was denied. 12
Undeterred, Tolentino filed a petition for certiorari before the CA.
Ruling of the Court of Appeals
In its assailed December 9, 2014 decision, the CA dismissed Tolentino's appeal and affirmed the ruling of the NLRC. It held that in the absence of adequate diagnostic tests and procedures and reasonable findings to support the assessment of Tolentino's private physician, the medical certificate on his alleged disability could be taken at face value. This is especially true considering the overwhelming evidence supporting the findings of respondents' company-designated physicians.
Tolentino moved for reconsideration but his motion was denied by the CA in its June 18, 2015 resolution.
Hence, this petition for review raising the following:
ISSUES
1] WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT SEAMAN TOLENTINO IS NOT ENTITLED TO HIS CLAIMS FOR PERMANENT TOTAL DISABILITY BENEFITS.
2] WHETHER OR NOT THE COURT OF APPEALS ERRED IN ADOPTING THE GRADE II DISABILITY RATING OF THE COMPANY PHYSICIAN DESPITE EVIDENCE THAT SEAMAN TOLENTINO HAS REMAINED INCAPACITATED TO WORK.13
Tolentino insists that it was immaterial to resolve the unflinching opinions of the company-designated physician and his physician of choice because he remained unfit to work in spite of the lapse of the 240-day period. He explains that the company-designated physician's assessment of his disability rating was premature and baseless because he was still referred to an orthopedic surgeon for further evaluation. ETHIDa
Moreover, Tolentino faults the CA in not considering the additional medical reports he offered to submit to bolster his claim of permanent disability. He bewails that the appellate court is not precluded from receiving additional evidence because technical rules of procedure are not binding in labor cases. Lastly, Tolentino argues that he is entitled to attorney's fees because of respondents unjust refusal to pay his disability claims.
In their October 23, 2015 Comment, 14 respondents countered that Tolentino is only entitled to Grade 11 compensation because his unfitness to work did not mean total disability. Respondents posited that under the terms of the POEA Contract, which governs the claim for disability compensation, disability is measured in terms of gradings and in accordance with the schedule provided under the said contract. They pointed out that based on the schedule, Tolentino's disability is only partial at Grade 11.
In his February 10, 2016 Reply, 15 Tolentino argued that his disability is total and permanent because he has never been declared fit to work by the company-designated physicians within the 240-day period from his repatriation on July 14, 2011. He manifested that, until this day, he cannot return to his work as a seaman (Assistant Cook) due to his medical condition. Tolentino surmised that the fact that he is no longer employed by the respondents or by any other manning agency or principal on board an ocean-going vessel is sufficient proof that he is in a state of permanent total disability.
The Court's Ruling
The petition is without merit.
It should be noted that the LA, the NLRC and the CA unanimously ruled that Tolentino was only entitled to benefits corresponding to a Grade 11 disability, and not permanent total disability benefits. In sustaining Tolentino's entitlement to Grade 11 disability benefits instead of permanent total disability compensation, the CA wrote:
In the present petition, the private respondents' designated physicians declared petitioner with disability grade of 11 under the POEA schedule of disabilities on February 16, 2012, or 217 days from the time he disembarked or signed off from the vessel on July 14, 2011. Prior to the issuance of said final assessment, the petitioner underwent a number of procedures, including a series of physical therapies, all under the supervision of the company-designated physicians. Petitioner, while disagreeing with the assessment of the company-designated doctors sought the opinion of an independent physician who arrived at a contrary finding. The disagreement between the findings of the company-designated doctor and petitioner's chosen physician, however, was never referred to a third doctor chosen by both petitioner and private respondents, following the procedure outlined in Section 20(A) of the POEA-SEC. Had this been done, petitioner's medical condition could have been easily clarified and finally determined. cSEDTC
xxx xxx xxx
Considering the absence of findings coming from a third doctor, we sustain the findings of the NLRC in as much as the credibility of the findings of their respective doctors were properly evaluated based on their merits, and hold that the certification of the company-designated physician should prevail. 16
The Court finds no cogent reason to deviate from the factual findings of the labor tribunals as affirmed by the CA. If factual findings of the LA and the NLRC have been affirmed by the CA, the Court accords them the respect and finality they deserve. 17
At any rate, Tolentino's contention that he is entitled to permanent total disability because he is still unfit to work for more than 240 days deserves scant consideration.
As held in Santiago v. Pacbasin Shipmanagement, Inc., 18 a temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability.
In this case, from the time of his repatriation on July 14, 2011, Tolentino was under the care of company-designated team of specialists headed by Dr. Cruz. He underwent several tests and treatment. After completing treatment (physical therapy), on February 16, 2012, he was assessed with "Grade 11" partial disability. Notably, from July 14, 2011 to February 16, 2012, this assessment by Dr. Cruz was made on the 217th day well within the 240-day guideline period. Thus, Tolentino's condition cannot be considered a permanent total disability that would entitle him to the maximum disability benefit. The presumptive disability rule does not apply in this case.
There is likewise no merit in Tolentino's argument that Dr. Cruz partial disability assessment is baseless. As correctly noted by respondents, Tolentino's treatment has been administered not just by one doctor but by a team of specialists.
The disability assessment rendered by Dr. Cadag cannot be a basis for an award of maximum compensation. It is noteworthy that Dr. Cadag simply certified Tolentino as totally and permanently disabled after a one-time consultation. As correctly held by the NLRC, said finding ought not to be given more weight than the disability grading given by the company-designated doctor. POEA-SEC clearly provides that when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work shall be determined by the company-designated physician. If the doctor appointed by the seafarer, however, makes a finding contrary to that of the assessment of the company-designated physician, the parties may jointly agree on a third doctor, whose decision is final and binding. 19 In this case, Tolentino did not avail of this procedure. There was no agreement on a third doctor who shall examine him anew and whose finding shall be final and binding. In fact, as earlier stated, he sought the opinion of Dr. Caday after he had filed his complaint. SDAaTC
Under Section 20-B (3) of the POEA-SEC, the employee is duly-bound to secure the opinion of a third doctor. 20 After being aware of the conflicting opinions between the company-designated physician and physician-of-choice, Tolentino should have initiated the process of securing the opinion of a third-party doctor by informing his employer of the divergent diagnosis. Instead of observing the procedure laid out under the aforementioned provision, he prematurely filed the present complaint for disability benefits. Failure to comply with the provisions of Section 20-B (3) of the POEA-SEC is fatal to a claim of total disability benefits. 21
The CA, therefore, cannot be faulted for upholding the certification made by the company-designated doctor with respect to Tolentino's disability.
WHEREFORE, the petition is DENIED.
SO ORDERED."
Very truly yours,
MA. LOURDES C. PERFECTODivision Clerk of Court
By:
(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1. Penned by Associate Justice Edwin D. Sorongon, with Associate Justices Marlene Gonzales-Sison and Elihu A. Ybañez, concurring; rollo, pp. 57-68.
2. Id. at 70-71.
3. Id. at 58.
4. Id. at 58-59.
5. Id. at 59.
6. Id. at 60.
7. Id. at 220-229.
8. Id. at 229.
9. Id. at 274-283.
10. Id. at 281.
11. Id. at 282.
12. Id. at 309-310.
13. Id. at 33.
14. Id. at 426-435.
15. Id. at 439-445.
16. Id. at 65-66.
17. Libang, Jr. v. Indochina Ship Management, Inc., G.R. No. 189863, September 17, 2014, 735 SCRA 404, 416, citing Sarona v. National Labor Relations Commission, G.R. No. 185280, January 18, 2012, 663 SCRA 394, 414.
18. 686 Phil. 255 (2012).
19. Id. at 268.
20. Scanmar Maritime Services Incorporated v. Conag, G.R. No. 212382, April 6, 2016.
21. Marlow Navigation Philippines, Inc. v. Osias, G.R. No. 215741, November 23, 2015.