FIRST DIVISION
|
LEOPOLDO
ABANTE, Petitioner, - versus - KJGS
FLEET MANAGEMENT MANILA and/or GUY DOMINGO A. MACAPAYAG, KRISTIAN GERHARD
JEBSENS SKIPSRENDERI A/S, Respondents. |
G.R. No. Present: PUNO, C.J., Chairperson, CARPIO MORALES, LEONARDO-DE CASTRO, BERSAMIN,
and
VILLARAMA, JR., JJ. Promulgated:
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D E C I S I O N
CARPIO MORALES, J.:
On January 4, 2000, Leopoldo Abante (petitioner) was
hired by respondent KJGS Fleet Management Manila (KJGS) to work as ablebodied
seaman aboard M/T Rathboyne, for a
period of nine months and with a basic salary of US$535.00 per month.
Sometime in June, 2000, while carrying equipment on
board the vessel, petitioner slipped and hurt his back. Upon
the vessel’s arrival in
On
Petitioner later sought the opinion of another
doctor, Dr. Jocelyn Myra R. Caja, who diagnosed him to have “failed back
syndrome” and gave a grade 6 disability rating[2]
--- which rating rendered him medically unfit to work again as a seaman and called
for the award of US$25,000.00 disability benefits --- drawing him to file on April
27, 2001 a Complaint[3]
before the National Labor Relations Commission (NLRC), docketed as NLRC OFW
Case No. 01-04-0736-00, for disability compensation in the amount of US$25,000.00,
moral and exemplary damages and attorney’s fees.
By Decision[4]
of
agreed on by both the employer and the seafarer should be sought. Hence, the Labor Arbiter held that petitioner’s
immediate filing of the complaint, insisting on his own physician’s assessment,
was premature and, therefore, the assessment of the company-designated
physician that he is still fit to work prevails.
On petitioner’s appeal, the NLRC, by Decision[5]
of
By Decision[7]
of
Noting that the employment contract between KJGS and
petitioner was executed on
The petition is meritorious.
Section 20 (B) (3) of the POEA
Standard Employment Contract of 2000 provides:
SECTION 20. COMPENSATION AND BENEFITS FOR INJURY AND ILLNESS
The
liabilities of the employer when the seafarer suffers work-related
injury or illness during the term of his contract are as follows:
x x x x
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)
Clearly,
the above provision does not preclude the seafarer from getting a second
opinion as to his condition for purposes of claiming disability benefits, for as
held in NYK-Fil Ship Management v. Talavera::[9]
This provision substantially incorporates
the 1996 POEA Standard Employment Contract.
Passing on the 1996 POEA Standard Employment Contract, this Court held
that “[w]hile it is the
company-designated physician who must declare that the seaman suffers a
permanent disability during employment, it
does not deprive the seafarer of his right to seek a second opinion,”
hence, the Contract “recognizes the prerogative of the seafarer to request a
second opinion and, for this purpose, to consult a physician of his choice.”
(emphasis and underscoring supplied)
In
the present case, it is undisputed that petitioner immediately consulted with a
physician of his choice after initially having been seen and operated on by a
company-designated physician. It was
after he got a second opinion and a finding that he is unfit for further work
as a seaman that he filed the claim for disability benefits.
Respecting the appellate court’s ruling that it is
POEA Memo Circular No. 55, series of 1996 which is applicable and not Memo
Circular No. 9, series of 2000, apropos
is the ruling in Seagull Maritime
Corporation v.
Courts are called
upon to be vigilant in their time-honored duty to protect labor, especially in
cases of disability or ailment. When
applied to Filipino seamen, the perilous nature of their work is considered in
determining the proper benefits to be awarded.
These benefits, at the very least, should approximate the risks they
brave on board the vessel every single day.
Accordingly, if serious doubt exists on the
company-designated physician’s declaration of the nature of a seaman’s injury
and its corresponding impediment grade, resort
to prognosis of other competent medical professionals should be made. In doing so, a seaman should be given the
opportunity to assert his claim after proving the nature of his injury. These evidences will in turn be used to
determine the benefits rightfully accruing to him. (emphasis and underscoring supplied)
It bears noting that Dr. Lim’s medical findings did not significantly differ
from those of Dr. Caja’s. In essence, even
if Dr. Lim declared petitioner to be fit to resume sea duties, still, the final
diagnosis of “foraminal stenosis and central disc protrusion” remained six
months post-surgery.[11] It is
understandable that a company-designated physician is more positive than that
of a physician of the seafarer’s choice. It is on this account that a seafarer is
given the option by the POEA Standard Employment Contract to seek a second
opinion from his preferred physician.
Petitioners are, at this point, reminded
that the POEA standard employment
contract for seamen was designed primarily for the protection and benefit of Filipino seamen in
the pursuit of their employment on board ocean-going vessels. Its provisions must be construed and applied fairly,
reasonably and liberally in their favor. Only then can its
beneficent provisions be fully carried into effect. (emphasis and underscoring supplied)[12]
In HFS
The
bottomline is this: the certification of
the company-designated physician would defeat respondent’s claim while the
opinion of the independent physicians would uphold such claim. In such a
situation, we adopt the
findings favorable to respondent.
The
law looks tenderly on the laborer. Where the evidence may be reasonably
interpreted in two divergent ways, one prejudicial and the other favorable to
him, the balance must be tilted in his favor consistent with the principle of
social justice. (emphasis and underscoring supplied)
As to whether petitioner can claim disability benefits,
the Court rules in the affirmative. Permanent disability
refers to the inability of a worker to perform his job for more than 120
days, regardless of whether he loses the use of any part of his body. What determines petitioner’s entitlement to
permanent disability benefits is his
inability to work for more than 120 days.[14] In the case at bar, it was only on February 20, 2001 that the Certificate
of Fitness for Work was issued by Dr. Lim, more than 6 months from the time he
was initially evaluated by the doctor on July 24, 2000 and after he underwent operation
on August 18, 2000.
It is gathered[15]
from the documents emanating from the Office of Dr. Lim that petitioner was
seen by him from July 24, 2000 up to February 20, 2001 or a total of 13 times;
and except for the medical reports dated February 5, 2001 and February 20, 2001
(when the doctor finally pronounced petitioner fit to work), Dr.
Lim consistently recommended that
petitioner continue his physical rehabilitation/therapy and revisit clinic on specific dates for
re-evaluation, thereby implying that petitioner was not yet fit to work.
Given a seafarer’s entitlement
to permanent disability benefits when he is unable to work for more than 120
days, the failure of the company-designated physician to pronounce petitioner
fit to work within the 120-day period entitles him to permanent total
disability benefit in the amount of US$60,000.00.[16]
Respecting
the claim for moral and exemplary damages, the same cannot be granted, there
being no concrete showing of bad faith or malice on the part of KJGS. The records show that it shouldered all the
expenses incurred in petitioner’s surgery and subsequent rehabilitation. And it regularly inquired from Dr. Lim about
petitioner’s condition.
The
claim for attorney’s fees is granted following Article 2208 of the New Civil
Code which allows its recovery in actions for recovery of wages of laborers and
actions for indemnity under the employer's liability laws. The same fees are also recoverable when the
defendant's act or omission has compelled the plaintiff to incur expenses to
protect his interest[17]
as in the present case following the refusal
by respondent to settle his claims. Pursuant
to prevailing jurisprudence, petitioner is entitled to attorney’s fees of ten
percent (10%) of the monetary award.
WHEREFORE, the decision and resolution of the Court of
Appeals dated December 10, 2007, and April 1,
2008, respectively, are REVERSED and SET ASIDE. Respondents are held jointly and severally
liable to pay petitioner the following: a) permanent total disability benefits
of US$60,000.00 at its peso equivalent at the time of actual payment; and b) attorney's fees of ten percent (10%)
of the total monetary award at its peso equivalent at the time of actual
payment.
CONCHITA CARPIO MORALES
Associate
Justice
WE CONCUR:
REYNATO S.
PUNO
Chief Justice
Chairperson
|
TERESITA J.
LEONARDO-DE CASTRO Associate Justice |
LUCAS P. BERSAMIN Associate Justice |
MARTIN S.
VILLARAMA, JR.
Associate Justice
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, I certify 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
[1] Vide
letter of Dr. Roberto D. Lim dated
[2] Vide
certification of Dr. Jocelyn
[3]
[4]
[5] CA rollo, pp. 21-25. Penned by Commissioner Ernesto S. Dinopol and concurred in by Presiding Commissioner Roy V. Señeres and Commissioner Romeo L. Go.
[6]
[7]
[8]
[9] G.R. No. 175894, November
14, 2008 citing Seagull
Maritime Corp. v. Dee, G.R. No. 165156, April 2, 2007, 520 SCRA 109,
117-119.
[10]
[11] Vide
[12] Seagull
Maritime Corp. v.
[13] G.R. No. 168716,
[14] Palisoc v. Easways Marine Inc., G.R. No. 152273,
[15] Vide medical reports, NLRC records, pp. 42-54.
[16] Sec. 30-A of POEA Standard Employment Contract or Memo Circular No. 5, series of 2000 (Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-Going Vessels).
[17] Remigio
v. National Labor Relations Commission, G.R. No. 159887,