[G.R. No. 154798, October 20, 2005]
CRYSTAL SHIPPING, INC., and/or A/S STEIN LINE BERGEN,
- versus -
DEO P. NATIVIDAD, Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
For review on certiorari are the Resolutions dated July 2, 2002 and August 15, 2002 of the Court of Appeals in CA-G.R. SP No. 71293 which denied petitioners’ motion for extension of time to file a petition for certiorari and their motion for reconsideration, respectively.
Petitioner A/S Stein Line Bergen, through its local manning agent, petitioner Crystal Shipping, Inc., employed respondent Deo P. Natividad as Chief Mate of M/V Steinfighter for a period of ten months. Within the contract period, respondent complained of coughing and hoarseness and was brought to shore for examination. He was diagnosed with “swelling neck and lymphatic glands right side in neck”, declared unfit for duty, and advised to see an ear-nose-throat specialist. He was repatriated to Manila on August 18, 1998.
Shortly after his arrival, respondent was referred to ClinicoMed Inc., the company-designated clinic, for check-up and later thoroughly examined at the Manila Doctors Hospital. He was diagnosed with “papillary carcinoma, metastatic to lymphoid tissue consistent with thyroid primary” and “reactive hyperplasis, lymph node”. On September 11, 1998, he underwent a total thyroidectomy with radial neck dissection. After the operation, respondent developed chest complications and pleural effusion, and had to undergo a thoracenthesis operation. On the basis of all these, his attending physician diagnosed him permanently disabled with a grade 9 impediment, with grade 1 as the most serious.
A second opinion by Marine Medical Services and Metropolitan Hospital attending physician, Dr. Robert D. Lim, likewise concurred that respondent was disabled with a grade 9 impediment. Under the care of Dr. Lim, respondent underwent various treatments, one of which was the radioactive iodine therapy at the Philippine General Hospital. While his treatment with Dr. Lim was ongoing, respondent sought the opinion of Dr. Efren R. Vicaldo, who opined that he was totally and permanently disabled for labor with a grade 1 impediment. On February 22, 1999, respondent underwent a whole body scan which revealed no trace of radio iodine on his body to indicate metastasis or residual thyroid tissue. The attending physician, Dr. Wilson D. Lim, confirmed the earlier assessments of disability with a grade 9 impediment.
All expenses incurred in respondent’s examination and treatments were shouldered by the petitioners. Respondent was also paid the allowable illness allowances, commensurate to a grade 9 impediment.
On June 25, 1999, petitioners offered US$13,060 as disability benefits which respondent rejected. Respondent claimed that he deserves to be paid US$60,000 for a grade 1 impediment. Failing to reach an agreement, respondent filed, with the Regional Arbitration Branch (RAB), a complaint for disability benefits, illness allowance, damages and attorney’s fees.
The Labor Arbiter ruled for respondent and ordered petitioners to pay respondent US$60,000 as disability benefits, P100,000 as moral damages, and ten percent of the total monetary award as attorney’s fees.
On appeal, the National Labor Relations Commission (NLRC) initially reversed the ruling of the RAB on the ground that findings of the company-designated doctors were binding, as stipulated in the Philippine Overseas Employment Agency (POEA) Standard Employment Contract. However, upon respondent’s motion for reconsideration, citing jurisprudence that findings of company-designated doctors are self-serving, the NLRC affirmed the ruling of the RAB with respect only to the award of disability benefits.
Petitioners seasonably filed a motion for extension of time to file their petition for certiorari with the Court of Appeals. On July 2, 2002, the appellate court denied the motion on the ground that pressure of work is not a compelling reason for the grant of an extension.
In view of the foregoing, petitioner’s motion for extension is DENIED and the instant case is DISMISSED.
Prior to the receipt of the appellate court’s denial, petitioners filed the petition. It was noted without action in view of the July 2, 2002 Resolution. Subsequently, petitioners moved for reconsideration of the resolution, but it was denied.
Hence, this appeal by certiorari ascribing error to the Court of Appeals,
I. … WHEN IT DENIED PETITIONERS’ MOTION FOR EXTENSION OF TIME TO FILE THEIR PETITION FOR CERTIORARI UNDER RULE 65, FAILING TO GIVE DUE CONSIDERATION TO THE ALLEGATIONS OF PETITIONERS THEREIN;
II. … WHEN IT MERELY NOTED PETITIONERS’ PETITION FOR CERTIORARI UNDER RULE 65 WITHOUT PERUSING THE ALLEGATIONS THEREIN AND THE ARGUMENTS IN SUPPORT THEREOF WHICH, UNDER THE CIRCUMSTANCES, IS CLEARLY INIQUITOUS AND UNJUST.
Here, we are asked to resolve the procedural issue of whether the Court of Appeals erred when it denied petitioners’ motion for extension of time to file a petition; and the substantive issue of the proper disability benefits that respondent is entitled to.
Anent the procedural issue, petitioners contend that the appellate court erroneously applied the ruling in Velasco v. Ortiz, because the factual circumstances therein were different from the present case. In Velasco, the parties sought for the admission of their appeal that was filed beyond the reglementary period. In the present case, however, petitioners filed their motion for extension of time within the reglementary period. They maintain that they have a valid and compelling reason in asking the appellate court for extension. Moreover, petitioners posit that technical rules of procedure should give way to substantive justice.
On the other hand, respondent argues that there should be more than a mere claim of “extreme pressure of work” to justify an extension of time to file a petition for certiorari. He calls attention to the fact that petitioners never moved for the reconsideration of the NLRC decision, which is a prerequisite for the filing of a petition for certiorari. Likewise, respondent counters petitioners’ plea for liberality by indicating their failure to file a motion for reconsideration of the NLRC decision.
Jurisprudence abounds on the subject that a motion for reconsideration is a prerequisite for the filing of a special civil action for certiorari. A literal interpretation of this prerequisite would require a motion for reconsideration of the NLRC decision, which granted a previous motion for reconsideration and reversed a prior decision. After all, the second decision is considered as entirely new.
We cannot fault the appellate court for faithfully complying with the rules of procedure which it has been mandated to observe. Save for the most persuasive of reasons, strict compliance is enjoined to facilitate the orderly administration of justice.
Indeed, on several occasions, we relaxed the rigid application of the rules of procedure to afford the parties opportunity to fully ventilate the merits of their cases. This is in line with the time-honored principle that cases should be decided only after giving all parties the chance to argue their causes and defenses. Technicality and procedural imperfection should thus not serve as basis of decisions.
The reason for requiring a motion for reconsideration is to make sure that administrative remedies have been exhausted before a case is appealed to a higher court. It allows the adjudicator a second opportunity to review the case, to grapple with the issues therein, and to decide anew a question previously raised. It is presumed that an administrative agency, if afforded an opportunity to pass upon a matter, will decide the same correctly, or correct any previous error committed in its forum.
With the first motion for reconsideration which the NLRC granted, there is no need for the parties to file another motion for reconsideration before bringing up the matter to the Court of Appeals. The NLRC was already given the opportunity to pass upon and correct its mistakes. Moreover, it would be absurd to ask the NLRC to keep on reversing itself.
Considering that property rights of both parties are involved here, we will give due course to the instant petition. Remanding the case to the court a quo will only frustrate speedy justice and, in any event, would be a futile exercise, as in all probability the case would end up with this Court.  Thus, we shall bring the present controversy to rest by deciding on the appropriate disability benefits that respondent is entitled to.
On the substantive issue, petitioners assert that the NLRC erred when it said that findings of company-designated doctors are self-serving. They point out that there were three doctors who came up with the same findings. They argue that these findings were more credible than the findings of respondent’s doctor. In addition, petitioners claim that the award of a grade 1 impediment/disability benefit was wrong considering that respondent subsequently gained employment as chief mate of another vessel.
In resolving the merits of the case, we find pertinent Section 30 of the POEA Memorandum Circular No. 55, Series of 1996, which provides the schedule of disability or impediment for injuries suffered and illness contracted. The particular illness of the respondent is not within those enumerated. But, the same provision supplies us with the guideline that any item in the schedule classified under grade 1 constitutes total and permanent disability.
Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body. As gleaned from the records, respondent was unable to work from August 18, 1998 to February 22, 1999, at the least, or more than 120 days, due to his medical treatment. This clearly shows that his disability was permanent.
Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do. It does not mean absolute helplessness. 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.
Although the company-designated doctors and respondent’s physician differ in their assessments of the degree of respondent’s disability, both found that respondent was unfit for sea-duty due to respondent’s need for regular medical check-ups and treatment which would not be available if he were at sea. There is no question in our mind that respondent’s disability was total.
Petitioners tried to contest the above findings by showing that respondent was able to work again as a chief mate in March 2001. Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years. It is of no consequence that respondent was cured after a couple of years. The law does not require that the illness should be incurable. What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability. An award of a total and permanent disability benefit would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.
WHEREFORE, the petition is DENIED for lack of merit. The Resolutions dated July 2, 2002 and August 15, 2002 of the Court of Appeals in CA-G.R. SP No. 71293, as well as the Resolution dated April 9, 2002 of the National Labor Relations Commission in NLRC NCR CA No. 23333-2000 are AFFIRMED.
Costs against petitioners.
LEONARDO A. QUISUMBING
HILARIO G. DAVIDE, JR.
CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO
Associate Justice Associate Justice
ADOLFO S. AZCUNA
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
HILARIO G. DAVIDE, JR.
 Rollo, pp. 30-31, 33.
 Id. at 44, 65.
 Id. at 45, 66.
 Grading is based on Section 30 of Memorandum Circular No. 55, Series of 1996.
 Rollo, p. 71.
 Id. at 50.
 Id. at 81.
 Id. at 117-125.
 Id. at 31.
 Id. at 175.
 Id. at 33.
 Id. at 15.
 G.R. No. 51973, 16 April 1990, 184 SCRA 303.
 Pilipino Telephone Corporation v. National Telecommunications Commission, G.R. No. 138295, 28 August 2003, 410 SCRA 82, 88; Republic v. Express Telecommunication Co., Inc., G.R. Nos. 147096 & 147210, 15 January 2002, 373 SCRA 316, 343; Bernardo v. Abalos, Sr., G.R. No. 137266, 5 December 2001, 371 SCRA 459, 464.
 Casim v. Flordeliza, G.R. No. 139511, 23 January 2002, 374 SCRA 386, 393.
 El Reyno Homes, Inc. v. Ong, G.R. No. 142440, 17 February 2003, 397 SCRA 563, 570.
 Republic v. Court of Appeals, G.R. No. 130118, 9 July 1998, 292 SCRA 243, 251-252.
 Salcedo II v. Commission on Elections, G.R. No. 135886, 16 August 1999, 312 SCRA 447, 461.
 Gonzales v. Court of Appeals, G.R. No. 106028, 9 May 2001, 357 SCRA 599, 604; Diamonon v. Department of Labor and Employment, G.R. No. 108951, 7 March 2000, 327 SCRA 283, 291.
 Reyes v. Court of Appeals, G.R. No. 154448, 15 August 2003, 409 SCRA 267, 278 citing Fernandez v. National Labor Relations Commission, G.R. No. 105892, 28 January 1998, 285 SCRA 149, 170.
 REVISED STANDARD EMPLOYMENT TERMS AND CONDITIONS GOVERNING THE EMPLOYMENT OF FILIPINO SEAFARERS ON BOARD OCEAN-GOING VESSELS.
 Government Service Insurance System v. Cadiz, G.R. No. 154093, 8 July 2003, 405 SCRA 450, 454; Ijares v. Court of Appeals, G.R. No. 105854, 26 August 1999, 313 SCRA 141, 149-150.
 Philippine Transmarine Carriers, Inc. v. NLRC, G.R. No. 123891, 28 February 2001, 353 SCRA 47, 53.
 Ibid., citing Bejerano v. Employees’ Compensation Commission, G.R. No. 84777, 30 January 1992, 205 SCRA 598, 602.
 Rollo, p. 223.
 Government Service Insurance System v. Cadiz, supra, note 22.
[G.R. No. 156573, June 19, 2007]
MICRONESIA RESOURCES, DYNACOM SHIELD SHIPPING LTD. AND SINGA SHIP MANAGEMENT, A. S., PETITIONERS, VS. FABIOLO CANTOMAYOR, RESPONDENT.
D E C I S I O N
On or about September 29, 1998, petitioner Fabiolo Cantomayor* entered into a contract of overseas employment with respondent Dynacom Shield Shipping Ltd. and Singa Ship Management A.S. represented by respondent Micronesia Resources** to work on board the vessel M/T "CLOUD" under the following terms and conditions approved by the Philippine Overseas Employment Administration (POEA):Micronesia, et al. denied the claim of Cantomayor but shouldered the expenses of his ongoing medical treatment. They also offered to pay him compensation for his Grade 7 permanent and partial disability based on the following recommendation of a company physician:
Duration of Contract: 9 mos. plus/minus 1 mo. Position: Third Officer Basic Mo. Salary: US $824.00/mo. Hours of work: 191 hrs./mo. (as per CBA '98) Overtime: US $ 512.00/mo. Vacation Leave with Pay: US $ 8 days/mo.
Sometime in October 1998, petitioner joined the vessel M/T "CLOUD". Two (2) months thereafter, petitioner started to feel weak and encountered difficulty in breathing. Petitioner ignored his condition and continued with his employment. However, on or about February 17, 1999, petitioner, while working, suddenly felt dizzy and eventually collapsed. He regained consciousness not long after but since then he always felt weak and was constrained to work lightly.
When the vessel reached Italy, petitioner was brought to a hospital and was diagnosed to have coronary artery disease and was advised to undergo by-pass surgery. In view thereof, petitioner was repatriated to the Philippines and immediately sought treatment at the Medical Center of Manila, attended by a company-designated physician who noted that three (3) of his artery vessels were blocked, thereby confirming the diagnosis made by the doctors in Italy and echoing the same recommendation for immediate by-pass surgery. Thus, on or about June 30, 1999, petitioner underwent coronary artery by-pass at the Philippine Heart Center.
Considering his medical condition, petitioner was not able to return to his previous employment as a Third Officer. Consequently, he requested respondents to grant him permanent and total disability compensation as well as the reimbursement of his medical expenses in accordance with the terms and conditions of the Revised Standard Employment Terms and Conditions Governing the Employment of Filipino Seafarer on Board Ocean-going Vessels (otherwise known as the POEA Standard Employment Contract) and the JSU-AMOSUP CBA, of which he was allegedly covered.
There is no specific item in the POEA Schedule of Disability Grading regarding his illness. The nearest item is under "Abdomen" #4, instead of intra-abdominal organ involvement, the involved organ is the heart. Mr. Cantomayor suffered a disability grading of Grade 7 â€“ moderate residuals of disorder of inthrathoracic organ (heart).Cantomayor pressed for payment of permanent and total disability compensation amounting to US $80,000.00 and filed a complaint with the National Labor Relations Commission (NLRC) Arbitration Board. Labor Arbiter (LA) Romeo Go rendered a Decision on October 16, 2000, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered dismissing the complaint for lack of merit. However, respondents are ordered to pay complainant the amount of US$20,900 pertaining to grade 7 disability benefits.Micronesia, et al. did not appeal from the foregoing award. It was only Cantomayor who filed an appeal with the NLRC, insisting that he be compensated for the permanent and total disability he suffered.
WHEREFORE, premises considered, the present petition is hereby GIVEN DUE COURSE, and the writ prayed for, accordingly GRANTED. The assailed Decision dated November 29, 2001 and Resolution dated January 31, 2002 of the National Labor Relations Commission (NLRC) in NLRC NCR CA 027007-01 [OFW (M) 99-10-1799-00] are hereby REVERSED and SET ASIDE and a new one entered declaring petitioner to be suffering from a permanent and total disability justifying the grant in his favor of full benefits in accordance with law. In addition, attorney's fees equivalent to ten percent (10%) of the total monetary award herein is likewise granted to petitioner.Micronesia, et al. filed a Motion for Reconsideration but to no avail.
No pronouncement as to costs.
First, the Petition for Certiorari filed by private respondent is way out of time and should no longer have been acted upon, and because of this, the Decision of the NLRC below became final and executory and may no longer be disturbed;In their Memorandum, petitioners Micronesia, et al. insist that respondent Cantomayor is not entitled to any compensation because his illness is not compensable and, even if it were, the same was a pre-existing condition which he concealed from his employers. They also argue that, if Cantomayor is held entitled to compensation, then his award should be that corresponding to a Grade 7 disability for this was the assessment given by their company physician.
Second, the finding of the Court of Appeals that private respondent suffers total and permanent disability is baseless;
Third, the private respondent is entitled to no more than what the NLRC awarded him below, because: the mere fact that private respondent can no longer work as a seaman is not in itself sufficient justification to award him total disability compensation; b) entitlement to disability compensation under the Standard Terms of the POEA Contract is schedular in nature, and does not support the total disability compensation award granted to the private respondent; and c) private respondent is entitled only to the disability compensation justified by his condition, which is as assessed by the company's designated physicians.
It is undisputed that complainant was repatriated to the Philippines due to coronary disease he suffered while employed as a seafarer abroad. Back home, he was confirmed to be suffering from coronary artery disease [in] 3 vessels and needed a bypass surgery. In fact, the findings of the hospital in Italy show that complainant suffered occlusions in three vessels, one ranging from 70% to 100%, the second 100%, and the third 80%, all of which indicate that two of the said vessels were almost completely blocked while the third has been reduced to 20% capacity. This [sic] findings prove that complainant's ailment was already in an advanced stage affirming the fact that the illness was not an overnight occurrence but already a pre-existing condition.The NLRC found no taint of grave abuse of discretion in the foregoing decision of the LA.
Section 20 Compensation and BenefitsWe have interpreted the foregoing provision to be a sufficient legal basis for a grant of disability benefits to a seafarer who suffers any injury or illness during the term of his contract. In the recent case of Remigio v. National Labor Relations Commission, we held:
x x x x
B. Compensation and Benefits for Injury or IllnessThe liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows:
x x x x
- In case of permanent total or partial disability of the seafarer during the term of his employment caused by either injury or illness, the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 30 of his 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.
"Disability" is generally defined as "loss or impairment of a physical or mental function resulting from injury or sickness." Clearly, "disability" is not synonymous with "sickness" or "illness," the former being a potential effect of the latter. The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted. It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC, nowhere in the 1996 POEA SEC is there a list of "Occupational Diseases."The aforecited ruling is controlling for it is based on facts and issues that are strikingly parallel to those obtaining in the present case: both cases involve Filipino seafarers stricken with coronary artery disease during the terms of their contracts.
The unqualified phrase "during the term" in Section 20(B) of the 1996 POEA SEC covers all injury or illness occurring in the lifetime of the contract. The injury or illness need not be shown to be work-related. In Sealanes Marine Services, Inc. v. NLRC, we categorically held:The argument of petitioners that since cancer of the pancreas is not an occupational disease it was incumbent upon Capt. Arante to prove that his working conditions increased the risk of contracting the same, is not meritorious. It must be noted that his claims arose from the stipulations of the standard format contract entered into between him and SEACORP which, per Circular No. 2, Series of 198420 of respondent POEA was required to be adopted and used by all parties to the employment of any Filipino seamen (sic) on board any ocean-going vessel. His claims are not rooted from the provisions of the New Labor Code as amended. Significantly, under the contract, compensability of the death or illness of seam[e]n need not be dependent upon whether it is work connected or not. Therefore, proof that the working conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the term thereof by reason of such disease or illness, of the benefits stipulated thereunder which are, under Section C(2) of the same Circular No. 2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to under Philippine laws.This principle was reiterated in the recent case of Seagull Shipmanagement and Transport, Inc. v. NLRC.
While indeed, the Labor Code's provisions on disability benefits under the Employees' Compensation Commission (ECC) require the element of work-relation for an illness to be compensable, the 1996 POEA SEC giving a more liberal provision in favor of the seafarer must apply. As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties. In controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former's favor. The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, in consonance with the avowed policy of the State to give maximum aid and protection of labor. (Citations omitted)
Yet, the examining physician, designated by petitioner, certified him fit to work.
- ECG Report () Within Normal Limits () Significant Findings Poor R-waves progression NSSTTWC. (Emphasis added)
There is no dispute that beginning March 26, 1999 or three days from his repatriation on March 23, 1999, Cantomayor submitted himself to a series of medical examinations conducted by a company physician. On October 8, 1999, said company physician issued an assessment limiting his disability to a Grade 7 impediment rate. Both the NLRC and LA relied on this assessment. Micronesia, et al. insist that said assessment is conclusive.
- Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the employer and the seafarer. The third doctor's decision shall be final and binding on both parties.
x x x Post-operatively, he developed post-operative wound infection on care. Post-operative Treadmill Exercise Test was done last September 96, 1999 and the findings revealed signs of ischemia at the inferolateral wall.Based on the foregoing medical record alone, it is clear that Cantomayor had not been able to resume work as a Third Officer for more than 120 days and that he continues to suffer chest pains and fatigability on long distance ambulation. The partial disability assessment of the company physician is therefore inconsistent with said record. To quote from Remigio v. National Labor Relations Commission once again:
At present, the patient complains of on and off chest pain and easy fatigability on long distance ambulation. He has no shortness of breath and his blood pressure is controlled at 130/90.
Based on the clinical course and findings, I am recommending a partial permanent disability. (Emphasis added)
A total disability does not require that the employee be absolutely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue her usual work and earn therefrom. On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days. Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad, we held:Given that Cantomayor had not been able to resume the same work or activity for more than 120 days, the CA cannot be faulted in discarding the Grade 7 disability assessment of the company physician and in declaring that Cantomayor suffers from Grade 1 disability.Permanent disability is inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body x x xApplying the foregoing standards, we find that petitioner suffered from permanent total disability.
Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do. It does not mean absolute helplessness. 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.
It is undisputed that petitioner started to suffer chest pains on March 16, 1998 and was repatriated on April 23, 1998 after having been found as "not fit for duty." The medical report dated June 25, 1998 of the company-designated physician, Dr. Abesamis, establishes the following facts, viz: a) petitioner underwent a coronary bypass on April 2, 1998; b) petitioner was "unfit" from April 27, 1998 (date of referral) to June 25, 1998 (date of medical report); c) petitioner may not return to sea duty within 8-10 months after June 25, 1998; and d) petitioner may return to sea duty as a piano or guitar player after 8-10 months from June 25, 1998.
These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months -- from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998. This, by itself, already constitutes permanent total disability. What is more, private respondents were well aware that petitioner was working for them as a drummer, as proven by the communication of respondent principal to respondent agency referring to petitioner as "DRUMMER WITH OUR ENCHANTED ISLE QUARTET." Thus, the certification that petitioner may go back specifically as a piano or guitar player means that the likelihood of petitioner returning to his usual work as a drummer was practically nil. From this, it is pristine clear that petitioner's disability is total and permanent.
Private respondents' contention that it was not shown that it was impossible for petitioner to play the drums during the 8-10 months that he was on land is specious. To our minds, petitioner's unfitness to work attached to the nature of his job rather than to its place of performance. Indeed, playing drums per se requires physical exertion, speed and endurance. It demands the performance of hitting strokes and repetitive movements that petitioner, having undergone a triple coronary bypass, has become incapacitated to do.
The possibility that petitioner could work as a drummer at sea again does not negate the claim for permanent total disability benefits. In the same case of Crystal Shipping, Inc., we held:Petitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001. Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years. The law does not require that the illness should be incurable. What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability. (Emphasis added; citations omitted)
[G.R. No. 159887, April 12, 2006]
BERNARDO REMIGIO, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION, C.F. SHARP CREW MGT., INC. & NEW COMMODORE CRUISE LINE, INC.,RESPONDENTS.
D E C I S I O N
Mr. B. Remigio who had Coronary Bypass (6x) abroad last April 2, 1998 has completed his cardiac rehabilitation here at the Phil. Heart Center.Â Stress done on June 23, 1998 shows functional capacity at 8 METS.
Lately he has been complaining of epigastric discomfort probably from Ecotrin.Â He has been on ulcer regimen.
WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents jointly and severally to pay complainant, his sickness allowance in the amount of US$3,400.00.
All other claims are hereby dismissed for lack of merit.
THE DECISION OF THE HONORABLE COURT OF APPEALS DISMISSING PETITIONER'S PETITION FOR CERTIORARI AND AFFIRMING
THE HONORABLE PUBLIC RESPONDENT AND DENYING PETITIONER'S MOTION FOR RECONSIDERATION IS CONTRARY TO LAW.
Sec. 20.Â Compensation and Benefitsduring the term of
x x x
B.Â Compensation and Benefits for Injury or Illness
The liabilities of the employer when the seafarer suffers injury or illness
his contract are as follows:permanent total or partial disability
x x x
5.Â In case of
of the seafarer during the term of employment caused by either injury or illness[,] the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 30 of [t]his Contract.Â 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.SCHEDULE OF DISABILITY OR IMPEDIMENT FOR INJURIES SUFFERED AND DISEASES OR ILLNESS CONTRACTED
Any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability
x x x
- Fracture of four (4) or more ribs resulting to severe limitation of chest expansion - Gr. 6
- Fracture of four (4) or more ribs with intercostal neuralgia resulting in moderate limitation of chest expansion - Gr. 9
- Slight limitation of chest expansion due to simple rib functional without myositis or intercostal neuralgia - Gr. 12
- Fracture of the dorsal or lumber spines resulting to severe or total rigidity of the trunk or total loss of lifting power of heavy objects - Gr. 6
- Moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk - Gr. 8
- Slight rigidity or one third (1/3) loss of motion or lifting power of the trunk - Gr. 11
- Injury to the spinal cord as to make walking impossible without the aid of a pair of crutches - Gr. 4
Injury to the spinal cord as to make walking impossible even with the aid of a pair of crutches - Gr. 1
- Injury to the spinal cord resulting to incontinence of urine and feces - Gr. 1x x x
.(emphases supplied)"Disability" is generally defined as "loss or impairment of a physical or mental function resulting from injury or sickness." Â Clearly, "disability" is not synonymous with "sickness" or "illness," the former being a potential effect of the latter. Â The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted.Â It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC, nowhere in the 1996 POEA SEC is there a list of "Occupational Diseases."
Sec. 30-A.Â SCHEDULE OF DISABILITY ALLOWANCES
Impediment Grade Impediment 1 Maximun Rate x 120.00% 2 Maximun Rate x 88.81% 3 Maximun Rate x 78.36% 4 Maximun Rate x 68.66% 5 Maximun Rate x 58.96% 6 Maximun Rate x 50.00% 7 Maximun Rate x 41.80% 8 Maximun Rate x 33.59% 9 Maximun Rate x 26.12% 10 Maximun Rate x 20.15% 11 Maximun Rate x 14.93% 12 Maximun Rate x 10.45% 13 Maximun Rate x 6.72% 14 Maximun Rate x 3.74%
To be paid in Philippine Currency equivalent at the exchange rate prevailing during the time of payment.
The argument of petitioners that since cancer of the pancreas is not an occupational disease it was incumbent upon Capt. Arante to prove that his working conditions increased the risk of contracting the same, is not meritorious.Â It must be noted that his claims arose from the stipulations of the standard format contract entered into between him and SEACORP which, per Circular No. 2, Series of 1984
of respondent POEA was required to be adopted and used by all parties to the employment of any Filipino seamen (sic) on board any ocean-going vessel.Â His claims are not rooted from the provisions of the New Labor Code as amended.Â Significantly,under the contract, compensability of the death or illness of seam[e]n need not be dependent upon whether it is work connected or not.Â Therefore, proof that the working conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the term thereof by reason of such disease or illness, of the benefits stipulated thereunder
which are, under Section C(2) of the same Circular No. 2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to under Philippine laws.(emphasis supplied)This principle was reiterated in the recent case of Seagull Shipmanagement and Transport, Inc. v. NLRC.
Art. 192 (c) The following disabilities shall be deemed total and permanent:Petitioner likewise cites Vicente v. ECC and Abaya, Jr. v. ECC, both of which were decided applying the Labor Code provisions on disability benefits. Private respondents, on the other hand, contend that petitioner erred in applying the definition of "permanent total disability" under the Labor Code and cases decided under the ECC as the instant case involves a contractual claim under the 1996 POEA SEC.
(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules; Â Â Â Â Â Â x x x
Sec. 2. Disability.-- (a)Â A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules.disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule Xof these Rules.
(c)Â A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body.
Vicente v. ECC
permanent total disability’
x x x the test of whether or not an employee suffers from ‘
is a showing of thecapacity of theÂ employee to continue performing his work notwithstanding the disability he incurred. Thus, if by reason of the injury or sickness he sustained, the employee is unable to perform his customary job for more than 120 days and he does not come within the coverage of Rule X of the Amended Rules onÂ Employees Compensability
(which, in more detailed manner, describes what constitutes temporary total disability),then the said employee undoubtedly suffers from ‘permanent total disability’ regardless of whether or not he loses the use of any part of his body. (emphases supplied)
Atotal disability does not require that the employee be absolutely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue her usual work and earn therefrom.Â On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days.Â Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad, we held:
is inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.
Â x x xTotal disability,
on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.
Â It does not mean absolute helplessness.Â 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.
Applying the foregoing standards, we find that petitioner suffered from permanent total disability.
Petitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001. (citation omitted)Â
Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years.ÂThe law does not require that the illness should be incurable.Â What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability.
That the company-designated physician did not specify that petitioner suffered from any disability should not prejudice petitioner's claim for disability benefits.Â In the first place, it is well to note that it was respondent agency which referred petitioner to the American Outpatient Clinic giving only the specific instruction that the designated physician indicate in the medical report "the estimated treatment period and the exam conducted."Â Moreover, what is important is that the facts stated in the medical report clearly constitute permanent total disability as defined by law.Â It is well-settled that strict rules of evidence are not applicable in claims for compensation and disability benefits. Disability should not be understood more on its medical significance but on the loss of earning capacity. Â As in the case of Crystal Shipping, Inc., an award of permanent total disability benefits in the petition at bar would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.
Section 20.D.Â No compensation shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.We have held that a worker brings with him possible infirmities in the course of his employment andwhile the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability.
(a) The income benefit shall be paid beginning on the first day of such disability.Â If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid.Â However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System; x x x
 Supra note 35.
 Austria v. CA, G.R. No. 146636, August 12, 2002, 387 SCRA 216, 221, citing Gonzaga v. ECC, No. L-62287, January 31, 1984, 127 SCRA 443.
 Rule XI, Section 1(b) of the Amended Rules on Employees Compensation.
 Supra note 44.
 Ibid., citing GSIS v. Cadiz, supra note 45; Ijares v. CA, supra note 46.
Ibid., citing Philippine Transmarine Carriers, Inc. v. NLRC, supra Note 39.
Ibid., citing Bejerano v. ECC, supra note 43.
 CA rollo, p. 64.
Citing GSIS v. Cadiz, supra note 45.
 CA Rollo, p. 88.
 Philippine Transmarine Carriers, Inc. v. NLRC, supra note 39, citing NFD International Manning Agents, Inc. v. NLRC, G.R. No. 107131, March 13, 1997, 269 SCRA 486, 494.
 Supra note 39.
 Supra note 44.
 Seagull Shipmanagement and Transport, Inc. v. NLRC, supra, citing More Maritime Agencies, Inc. v. NLRC, G.R. No. 124927, May 18, 1999, 307 SCRA 189.
 Contract of Employment and the factual findings of the Labor Arbiter, NLRC and CA; CA rollo, pp. 34, 36, 45 and 63, rollo, p. 29.
[G.R. No. 165934, April 12, 2006]
UNITED PHILIPPINE LINES, INC. AND/OR HOLLAND AMERICA LINE, INC.,PETITIONERS, VS.FRANCISCO D. BESERIL, RESPONDENT.
D E C I S I O N
SUBJECT: ASST. COOK FRANCISCO BESERILALTHOUGH, THE SUBJECT MAY ACTUALLY PERFORM HIS FORMER DUTIES WITHOUT ANY PROBLEM, OUR-PRE-EMPLOYMENT SCREENING DOCTORS DO NOT WANT TO TAKE THE RISK IN CERTIFYING HIM FIT FOR SEA DUTY. Â THEY ADDED THAT SHOULD HAL AGREE TO RE-EMPLOY THE SUBJECT, IT WILL BE AT HAL’S RISK.
Â Â Â Â Â Â Â Â Â Â Â Â Â REHIRING OR DECLARATION OF DISABILITY
WITH REFERENCE TO THE CREWMEMBERS ABOVE CAPTIONED WE WOULD LIKE TO ASK FOR A FINAL DISPOSITION ON THE EVENTUAL FATE OF MR. FRANCISCO BESERIL.
CONSIDERING THAT HE HAS UNDERGONE HEART BYPASS SURGERY AND HAS HAD ALMOST ONE YEAR RECOVERY, THE SUBJECT DESIRES TO REVERT BACK TO HIS FORMER JOB ON BOARD YOUR VESSELS.
IN VIEW OF THE FOREGOING, MAY WE KNOW WHETHER YOU ARE STILL ENGAGING THE SUBJECT OR PUTTING HIM ON PERMANENT DISABILITY.
x x x x
(Emphasis and underscoring supplied)In a correspondence dated January 13, 1999, Dr. Carter Hill of HAL’s Medical Department declared respondent “permanently unfit.”
Several months after his treatment and repatriation, Mr. Beseril was made to believe and expect that he would be rehired but up to now he cannot be reinstated to his former occupation. Â In fact, Mr. Francisco L. Beseril has already been considered and pronounced to be totally and permanently unfit to discharge his former sea based occupation and as a consequence thereof, the attending physician strongly suggested/recommended that Mr. Beseril retire permanently as a seaman.
Under the POEA Standard Employment Contract and the CBA, our client is entitled to disability pay of no less than the full amount of Sixty Thousand US Dollars (USD60,000.00), for the total loss of his earning capacity.Therefore, a formal demand is hereby made upon your goodselves and your principal to pay our client in the amount of USD60,000.00 within ten (10) calendar days from your receipt of this letter.
Should we not hear from you within the stated period, we shall commence legal actions against you and your principal without further notice to recover the full amount of USD60,000.00 plus moral damages, attorney’s fees and costs of suit.
We trust that you find this claim in order and look forward to an early settlement of the same.
The letter was transmitted by fax to HAL which sent a reply by telex on the same day, the pertinent portion of which is quoted hereunder:
IN MR. JARIGUE’S NOVEMBER 27 1998 CORRESPONDENCE REFERENCE NUMBER 08-98 HE WAS INQUIRING OF THE COMPANIES FINAL DECISION. Â IN CARTER HILL’S 1/13/99 CORRESPONDENCEHEDECLAREDMR.BESERILPERMANENTLY UNFIT
NOT PERMANENTLY DISABLED. Â THIS DISTINCTION WOULD MEAN A PARTIAL DISABILITY NOT PERMANENT.PLEASE DETERMINETHE PARTIALDISABILITYPERCENTAGESOWEMAY FURTHERDISCUSSTHENEXTSTEP
On March 19, 1999, UPL sent a letter to respondent’s counsel referring respondent for evaluation and determination of the degree of disability to its designated physician Dr. Abaya.
I have examined Mr. Francisco Beseril and find himinrelativelygoodhealth.
Â I have consulted the people who supervised his cardiac rehabilitation and they have assured me based on their ECG and Treadmill findings that Mr. Beseril is in good health and fit for work.After respondent’s medical records were sent to HAL, Dr. Hill sent the following message dated April 21, 1999 to UPL through Dr. Abaya:
Mr. Beseril claims he cannot get a job because his physical examination shows that he has had a coronary bypass and that all employment opportunities are therefore closed to him. No employer wants to employ him with a possible “recurrence” of his coronary problems.Â (Underscoring supplied)
UPON REVIEW OF THE PACKET OF MEDICAL RECORDS YOU HAVE SENT TO US ON THE ABOVE MENTIONED CREWMEMBER, I HAVE THE FOLLOWING COMMENTS:
HE IS FIT FOR SEA DUTY AS A COOK.
I NOTE HE HAS LOST 10 KG AND HAS A NORMAL BP AND TREADMILL ON 9/98. Â PLEASE ENCOURAGE HIM TO STOP SMOKING, EXERCISE REGULARLY, AND TRY TO REACH HIS OPTIMAL WEIGHT. Â ADDITIONALLY, I NOTE HIS URINE IS SPILLING SUGAR, AND I SUSPECT A[N] ORAL HYPOGLYCEMIC IS INDICATED TO CONTROL HIS BLOOD SUGAR LEVELS. Â HIS SUGARS CAN BE MONITORED AT SEA DURING HIS NEXT CONTRACT TO ENSURE IMPROVEMENT. Â DON’T HESITATE TO CONTACT ME IF I CAN BE OF FURTHER ASSISTANCE.
Â (Underscoring supplied)With HAL’s decision that respondent was “fit for sea duty as a cook,” the legal department of UPL, by its claim, spoke to him and that after explaining the consequences and implications of the options he had, he and his counsel agreed that he would serve again at HAL’s vessels.Â Respondent, however, never showed up at HAL’s office for re-employment.
Finding petitioners’ appeal meritorious, the NLRC, by Decision dated August 30, 2002, “MODIFIED” the Labor Arbiter’s decision by deleting the award of total disability benefit and ordering petitioners to deploy respondent to one of its foreign principals for the same position.
- There was grave abuse of discretion in awarding permanent total disability of US$ 60,000.00 in favor of [respondent] despite the overwhelming evidence of the findings of fitness by the company appointed physician specifically engaged to do the said task pursuant to the POEA Standard Employment Contract.
- It is a grave error to cite the cases of Loot vs. GSIS, 224 SCRA 59 in relation to Aquino vs. ECC, 201 SCRA 84 in deciding this case that involves a POEA Standard Employment Contract for Seafarers controversy.
- The 120 days under Article 192 (c) (1) of the Labor Code should not be used as a reckoning point to establish disability under the POEA Standard Employment Contract.Â (Underscoring supplied)
In granting [respondent’s] claim for total disability benefit, the Labor Arbiter gave merit to a report dated 27 November 1998 sent by Dax B. Jaurigue, respondent’s Hotel and Restaurant Manager for the Holland America Line Crewing Department. In said report, Mr. Jaurigue stated that although complainant may actually perform his former duties without any problem, [petitioners’] pre-employment screening doctors do not want to take the risk in certifying him fit for sea duty an[d] that should [petitioner] HAL agree to employ the subject, it will be at HAL’s risk. The Labor Arbiter also held that since complainant’s disability lasted more than 120 days, the same is sufficient basis to declare him permanently disabled. We do not agree. Records show that [petitioners’] company designated physician, Dr. Renato Abaya physically examined [respondent] sometime in March 1999, several months after the report of Mr. Jarigue was done. In this connection, saidDr.Abayaissuedareport dated6April1999statingthat[respondent]wasingoodhealthandfitforwork. Dr.Abayaalsoexecutedanaffidavitwhereinheattestedthat[respondent]isfit forseadutyasacook
. Â It is for this reason that [petitioners] were preparing to process [respondent’s] new employment contract. Â[Respondent]neverrefuted thefactthat[petitioners]offeredtorehirehimtohisformerposition.
ÂHealsodid notdenythatherefusedtoaccepttheofferofemploymentmadebythe [petitioners].
The 120days periodreferredtoin thePOEA Standard EmploymentContractforSeafarers refers tothemaximumliabilitythatmaybe grantedforsicknessallowance.
We have likewise taken note that the illness of [respondent] required more than 120 days of treatment and rehabilitation. Â [Petitioners] contend they continued to shoulder the expenses for [respondent’s] treatment and rehabilitation. Â This was admitted by [respondent] in his Rejoinder when he recognized the financial assistance extended to him by [petitioners]. Â In this connection, the Labor Arbiter held that since [respondent’s] disability lasted more than 120 days, there is sufficient basis to declare him disabled citing Aquino vs. ECC (201 SCRA 84). We do not agree. Â
ÂItisnotameasurethatcoulddeterminethe employee’sdegree of disability.
Â Moreover, [respondent’s] employment is covered by the POEA Standard Employment Contract. Â The POEA benefits under said contract are separate and distinct from those benefits provided under the Employees Compensation Commission, the SSS or GSIS. Â The provisions thereof should be the law between the contracting parties.[respondent]wasfound tohave beencuredorrecoveredfromhis illnessasdeterminedbythecompany designatedphysician
The foregoing circumstances being considered,
as he was declared fit to work for the same job he held prior to his illness. The job was offered to complainant by respondents which is proof that he did not lose his earning capacity.MODIFIED
Accordingly, we deem it proper to delete the award of total disability benefit. However, [respondent] is not left holding an empty bag. In this connection, [petitioners] are directed to deploy [respondent] within a reasonable period to one of its foreign principal for the same position he held prior to his illness.
WHEREFORE, the decision dated 28 April 2000 is
. ÂTheaward oftotaldisabilitybenefitintheamountofUS$60,000.00isdeleted.
Â (Emphasis and underscoring supplied)Respondent moved to reconsider the decision of the NLRC but the same was denied by Resolution dated October 30, 2002.
[1.] WHETHER OR NOT A FIFTY THREE (53) YEAR OLD SEAFARER WHO HAD UNDERGONE A TRIPLE BY-PASS OPERATION CAN BE CONSIDERED AS ONCE AGAIN FIT TO WORK ON BOARD AN OCEAN GOING VESSEL, JUST BECAUSE THE COMPANY DESIGNATEDÂ PHYSICIAN SAY SO[.]
[2.] DOES AN OFFER TO WORK ON BOARD AN OCEAN GOING VESSEL TO A FIFTY THREE (53) YEAR OLD SEAFARER WHO SUFFERED AND UNDERGONE TRIPLE BY-PASS OPERATION ABSOLVE THE EMPLOYER’S LIABILITY FOR DISABILITY COMPENSATION[?]
By Decision dated August 31, 2004, the appellate court reversed that of the NLRC, ratiocinating as follows:
WhiletheDoctorsRenatoAbayaandCarterHillthereaftercertifiedthat [respondent]isphysicallyfitto workagain
,Wenote thatthisoccurredonlyafter [respondent]hadalreadyfiledaclaimforpermanentdisability.
Â We cannot but agree with the [respondent] that with the proliferation of obviously biased company doctors whose loyalty rest completely upon the company they serve, their findings cannot be taken as gospel truth.In Wallem Maritime Services v. NLRC,
[the] High Tribunal had this to say:opinion
“x x x (The)
sofpetitioner’sdoctorstothiseffectshouldnotbegiven evidentiaryweightastheyarepalpablyself-servingandbiased infavorof petitioners,
and certainly could not be considered independent.”[respondent]isnolonger employableconsideringthekindof ailmenthesufferedandcontinuestosuffer.
Under Bureau Circular No. 5, Series of 1990, issued by the Department of Health to medical clinics and hospitals accredited to conduct medical examination of overseas contract workers and seafarers, those with ECG findings like myocardial ischemia, [infarction], 2nd and 3rd degree AV Block and other grave manifestation xxx and other illnesses which render the worker unemployable should be classified as Class D or unemployable.
The circular leaves Us no choice but to conclude that
Â We give judicial notice to the fact that no one fully recovers from a massive heart attack, and a person who has had a heart condition and has already suffered a heart attack is in danger of another attack anytime and absent any warning. Â [Respondent] therefore cannot be blamed if he is more cautious about his health and has become loathe to be deployed again. It should be remembered that [respondent] here is already 53 years old and has undergone a triple bypass operation during the term of his contract. ÂHismedicalconditionrendershim unemployableascookinaseafaringvessel.Itisalsoimportanttonotetha
tsuch ailmentmayhave been, inallprobability,contractedduringhisemploymentwith [petitioner].
Â And being such, he should not have been issued a work certification by company designated. His disability persists up to this very day and there is no showing that by some miracle, he has fully recovered from his ailment.In Wallem Maritime Services, Inc. v. NLRC,
the Supreme Court had occasion to rule:nonecessityfor petitionertoseektheopinionofathirddoctor“The POEA Standard Employment Contract is designed primarily for the protection and benefit of Filipino seamen in the pursuit of their employment on board ocean-going vessels. Its provisions must, therefore, be construed and applied fairly, reasonably and liberally in favor or for the benefit of the seamen and their dependents. Â Only then can its beneficent provisions can be fully carried into effect.”It is meet to point out that the Standard Employment Contract is not a limitation but a guaranteed protection to overseas contract workers.
4. That having been said, We find and so hold that there is
pursuant to his employment contract, as it is very clear that it is not possible for [respondent] to go back to work. We take judicial knowledge of the fact that a cook’s job is not exactly a walk in the park. A cook is exposed to constant heat and smoke, and the job may entail laborious manual tasks. In the case at bench, there is no disputing that [respondent] suffered a massive heart attack while pushing a rack of glass. What makes the job all the more difficult is that it is conducted in a moving ship, which makes for increased work-related stress. All these factors may exacerbate [respondent’s] heart condition and expose him to the possibility of another attack. [Respondent’s] refusal to go back to work and instead claim permanent disability benefits could not thus be considered unreasonable and impelled by nothing but greed but rather,Â justified by [respondent’s] health considerations and a natural desire of every person to preserve his life for as long as possible. For being human, [respondent] should not be penalized.
Â (Emphasis and underscoring supplied)Petitioners’ Motion for Reconsideration having been denied, the present petition was filed faulting the appellate court in
THIRD DOCTOR CLAUSE”A.
x x x FINDING THAT RESPONDENT’S PETITION FOR CERTIORARI WAS SUFFICIENT IN FORM AND SUBSTANCE IN COMPLIANCE WITH SECTION 1, RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE.B.
. . . AWARDING PERMANENT DISABILITY BENEFITS TO RESPONDENT IN LIGHT OF THE PROVISIONS OF THE POEA STANDARD CONTRACT.C.
. . . APPLYING THE “
OF THE POEA STANDARD CONTRACT.D.
. . . FINDING THAT THE “RELEASE AND QUITCLAIM” EXECUTED AND SIGNED BY RESPONDENT IS NOT PROOF THAT THE LATTER HAS RECEIVED ALL BENEFITS TO WHICH HE IS ENTITLED.
Petitioners argue that, among other things, the provisions on disability benefits operate only upon certification by the company-designated physician that the claiming seafarer is indeed disabled, hence, respondent is not eligible for an award of disability benefits as “he was certified fit for sea duty after the conduct of the last medical examination,” and the finding of the American Outpatient Clinic during his pre-employment medical examination that respondent was unfit for sea duty, which finding was concurred in by Dr. Hill of HAL, was merely “initial.”
3. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days.For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the employer and the seafarer. The third doctor’s decision shall be final and binding on both parties.(Emphasis supplied)
Contrary to petitioners’ argument, the findings of the company-designated physician were not disregarded. Â As gathered from the records of the case, two company-designated physicians, Dr. Abesamis of the American Outpatient Clinic and HAL’s Dr. Hill, found respondent to be unfit for sea duty. Â It was on the basis of such finding that respondent anchored his claim for disability benefits. There was no reason for respondent to seek the opinion of another physician because he was not contesting Doctors Abesamis and Hill’s identical finding.
Petitioners tried to contest the above findings by showing that respondent was able to work again as a chief mate in March 2001. Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years. It is of no consequence that respondent was cured after a couple of years. ÂThelawdoesno
ÂWhatisimportantisthathewasunabletoperform hiscustomaryworkformorethan120 dayswhich constitutespermanenttotal disability.
Â An award of a total and permanent disability benefit would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.Â (Underscoring supplied)WHEREFORE, the petition isDENIED.