Republic of the
Supreme Court
THIRD
DIVISION
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G.R. No. 156573 |
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DYNACOM SHIELD |
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SHIPPING LTD. and SINGA |
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Present: |
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SHIP MANAGEMENT, A. S., |
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Petitioners, |
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YNARES-SANTIAGO, J., |
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Chairperson, |
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AUSTRIA-MARTINEZ, |
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- versus - |
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CHICO-NAZARIO, and |
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NACHURA, JJ. |
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FABIOLO CANTOMAYOR, |
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Promulgated: |
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Respondent. |
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June 19,
2007 |
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D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari under Rule 45
of the Rules of Court assailing the September 13, 2002 Decision[1] and December 5, 2002 Resolution[2] of the Court of Appeals (CA) in CA-G.R. SP No.
70388[3] which reversed and set aside the November 29, 2001 Decision[4] and January 31, 2002 Resolution[5] of the National Labor Relations Commission
(NLRC) in NLRC NCR CA 027007-01 [OFW (M) 99-10-1799-00].
The
antecedent facts are as summarized by the CA, viz.:
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):
Duration of Contract: 9 mos. plus/minus 1 mo.
Position: Third Officer
Basic
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
When the vessel reached
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.[6]
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 – moderate residuals of disorder of inthrathoracic
organ (heart).[7]
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
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.[8]
The
NLRC dismissed his Appeal in its
Cantomayor filed a Petition for Certiorari which the
CA granted in the September 13, 2002 Decision assailed herein, thus:
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.
No pronouncement as to costs.
SO ORDERED.[9]
Hence,
the present Petition with the following issues:
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;
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.[10]
In their Memorandum, petitioners
The
petition lacks merit.
The
procedural issue raised by
Going
now into the substantive matter raised by
It is undisputed that complainant was repatriated to the
The NLRC found no taint of grave abuse of
discretion in the foregoing decision of the LA.
The
CA overturned the NLRC and LA and held that the coronary artery disease which
afflicted Cantomayor during his employment with
First,
Cantomayor’s ailment is compensable under Section
32-A of the POEA Standard Employment Contract.[14]
Second,
respondent's ailment was not pre-existing as shown by the result of his
Pre-employment Medical Examination (PEME) where physicians designated by
petitioners declared him fit to work. The
finding that respondent’s ailment was already in an advanced stage when it was
discovered does not preclude the possibility that it developed during his
employment with petitioners.[15]
Finally, respondent’s disability is permanent and total because the severity of his ailment rendered him incapable of performing the work of a seafarer.[16]
The reasoning of the CA is
well-founded, although we note that it was mistaken when it cited
Section 32-A
of the POEA Standard Employment Contract.
In Paragraph 2 of their
Section 20 Compensation and Benefits
x x x x
B. Compensation and Benefits for Injury or
Illness
The liabilities of the
employer when the seafarer suffers injury or illness during the term of his
contract are as follows:
x x x x
5. 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.
We
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,[19] we held:
"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 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[30] 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)[20]
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.
As in Remigio v. National
Labor Relations Commission, therefore, we apply to the present case Section
20-B(5) of the 1996 POEA-SEC as legal basis for the grant of disability
benefits to Cantomayor who was afflicted with coronary artery disease during the term of
his contract. The CA therefore was
correct in ruling that the claim of Cantomayor had
legal basis. We must point out, though,
that it was mistaken in citing, not Section 20-B, but Section 32-A. The latter provision (Section 32-A) can be
found only in the 2000 POEA-SEC,[21] which took effect after the parties entered into their 1998
employment contract.
As to the finding of the LA and NLRC that said
ailment was pre-existing, the same is belied by the result of Cantomayor’s PEME.
In his PEME result, Cantomayor
declared that he did not suffer from high blood pressure or heart trouble or
that he had not been told that he suffered from any such ailment.[22]
In the same PEME result, there appears a
certification that after physical examination, Cantomayor
was found to have a normal heart. However,
the result of his ECG is indicated as follows:
A. ECG
Report () Within Normal Limits () Significant Findings Poor R-waves
progression NSSTTWC.[23] (Emphasis added)
Yet, the examining physician, designated by
petitioner, certified him fit to work.
The foregoing entries in his PEME result
confirm that even if Cantomayor had declared himself free of heart ailment,
Having established that the illness of Cantomayor is compensable, we now resolve whether the
amount awarded by the CA is proper.
The 1996 POEA-SEC requires that a claim for
disability benefit be supported by a post-employment medical report issued as
follows:
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.[26]
There
is no dispute that beginning
Not
so. We have held that while it is the
company-designated physician who must declare that a seafarer-claimant suffers
a permanent disability, the former’s declaration is
not conclusive upon the latter or the court.[29] In the present case, there is
no indication that Cantomayor sought a second
opinion. Nonetheless, it is of record
that the latter was rendered unfit to discharge his duties as Third Officer for
more than 120 days. It is of record that
Cantomayor was repatriated on
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.
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)
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:
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:
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 x
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.
Applying the
foregoing standards, we find that petitioner suffered from permanent total
disability.
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."[30][55] 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)
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.
WHEREFORE,
the Petition is denied for lack of merit.
Costs against petitioners.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
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MINITA V. CHICO-NAZARIO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
ATTESTATION
I attest that the conclusions in the
above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S.
PUNO
Chief Justice