Labor Less Digests

 

DE LA SALLE ARANETA UNIVERSITY v. JUANITO c. BERNARDO G.R. No. 190809, February 13, 2017, First Division, LEONARDO-DE CASTRO, J. Under the rule of statutory construction of expressio unius est exclusio alterius, Bernardo's claim  for retirement benets cannot be denied on the ground that he was a part-time employee as parttime employees are not among those specically exempted under Republic Act No. 7641 or its Implementing Rules. Facts: On February 26, 2004, Bernardo fled a complaint against DLS-AU and its owner/manager, Dr. Oscar Bautista (Dr. Bautista), or the payment o retirement benefts. Bernardo alleged that he started working as a part-time proessional lecturer at DLS-AU (ormerly known as the Araneta University Univ ersity Foundati Foundation) on) on June 1, 1974 or an hourly rate o ₱20.00. Bernardo taught or two semesters and the summer or the school year 1974-1975. Bernardo then took a leave o absence rom June 1, 197 5 to October 31, 1977 when he was assigned by the Philippine Government to work in Papua New Guinea. When Bernardo came back in 1977, he resumed teaching at DLS-AU until October '12, 2003, the end o the frst semester or school year 2003-2004. Bernardo's teaching contract was renewed at the start o every semester and summer. However, on November 8, 2003, DLS-AU inormed Bernardo through a telephone call that he could not teach at the school anymore as the school was implementing the retirement age limit or its aculty members. As he  was already 75 years old, Bernardo had no choice but to retire. At the time o his retirement, Bernardo was being paid ₱246.50 per hour.  Aggrieved by the repeated denials o his claim or retirement benefts, Bernardo fled beore the NLRC, National Capital Region, a complaint or non-payment o retirement benefts and damages against DLS-AU and Dr. Bautista. Issue:  Whether or not a part-time employee employee is entitled to retirement benefts. benefts. Ruling:  YES. Retirement benefts are intended to help the employee enjoy the remaining years o his lie,  YES. Retirement lessening the burden o worrying or his fnancial support, support, and are a orm o reward or his loyalty  and service to the employer. Retirement benefts, where not mandated by law, may be granted by  agreement o the employees and their employer or as a voluntary act on the part o the employer. In the presen presentt case, case, DLS-AU DLS-AU,, throug through h Dr Dr.. Bautis Bautista, ta, denied denied Berna Bernardo rdo's 's claim claim or retire retiremen mentt beneft ben eftss becau because se only only ull-t ull-time ime perman permanen entt acult acultyy o DL DLS-A S-AU U are entitl entitled ed to said said ben beneft eftss pursuant to university policy and the CBA. Since Bernardo has not been granted retirement benefts under any agreement with or by voluntary act o DLS-AU, the next question then is, can Bernar Ber nardo do claim claim retire retiremen mentt beneft beneftss by mandat mandatee o any law? law? We ans answer wer in the armat armativ ive. e. Republic Act No. 7641 is a curative social legislation. It precisely intends to give the minimum retirement benefts to employees not entitled to the same under collective bargaining and other agreem agr eement ents. s. It also also applie appliess to establ establish ishmen ments ts with with existi existing ng collec collectiv tivee bargai bargainin ning g or other other

 

agreements or voluntary retirement plans whose benefts are Jess than those prescribed in said law. Republic Act No. 7641 states that "any employee may be retired upon reaching the retirement age x x x;" and "[i]n case o retirement, the employee shall be entitled to receive such retirement benefts as he may have earned under existing laws and any collective bargaining agreement and other agreements." The Implementing Rules provide that Republic Act No. 7641 applies to "all employees in the private sector, regardless o their position, designation or status and irrespective o the method by which their wages are paid, except to those specifcally exempted x x x." And Secretary Quisumbing' s Labor Advisory urther clarifes that the employees covered by Republic  Act No. 7641 shall "include part-time employees, employees o service s ervice and other job contractors and domest domestic ic helper helperss or person personss in the person personal al servic servicee o ano anothe ther." r." The on only ly exempt exemption ionss specifcally identifed by Republic Act No. 7641 and its Implementing Rules are: (1) employees o  the National Government and its political subdivisions, including government-owned and/or controlled corporations, i they are covered by the Civil Service Law and its regulations; and (2) employees o retail, service and agricultural establishments or operations regularly employing not more than 10 employees. Under the rule o statutory construction o expressio unius est exclusio alterius, Bernardo's claim or retirement benefts cannot be denied on the ground that he was a part-time employee as parttime employees are not among those specifcally exempted under Republic Act No. 7641 or its Implementing Implementin g Rules. DLS-AU invokes UST Faculty Union v. National Labor Relations Commission, wherein it was held that when an employee or ocial has reached the compulsory retirement age, he is thereby  eectively separated rom the service. And so, DLS-AU maintains that Bernardo's cause o action or his retirement benefts, which is patently a money claim, accrued when he reached the compulsory retirement age o 65 years old, and had already prescribed when Bernardo fled his complaint only 10 years later, when he was already 75 years old.  We are not persuaded. The The case o UST Faculty Union Union is not in point point as the issue involved involved therein  was the right o a union to intervene in the extension o the service o a retired employee. Proessor Tranquilina J. Marilio (Pro. Marilio) already reached the compulsory retirement age o  65 years old, but was granted by the University o Sto. Tomas (UST) an extension o two years tenure. We ruled in said case that UST no longer needed to consult the union beore reusing to urther extend Pro. Marilio' s tenure.1âwphi1 A cause o action has three elements, to wit, (1) a right in avor o the plainti by whatever means and under whatever law it arises or is created; (2) an obligation on the part o the named deendant to respect or not to violate such right; and (3) an act or omission on the part o such deendant violative o the right o the plainti or constituting a breach o the obligation o the deendant to the plainti. Bernardo's right to retirement benefts and the obligation o DLS-AU to pay such benefts are already established under Article 302 [287] o the Labor Code, as amended by Republic Act No. 7641. However, there was a violation o Bernardo's right only ater DLS-AU inormed him on November 8, 2003 that the university no longer intended to oer him another contract o  employment, and already accepting his separation rom service, Bernardo sought his retirement benefts, but was denied by DLSAU. Thereore, the cause o action or Bernardo's retirement benefts only accrued ater the reusal o DLS-AU to pay him the same, clearly expressed in Dr.

 

Bautista's letter dated February 12, 2004. Hence, Bernardo's complaint, fled with the NLRC on February 26, 2004, was fled within the three-year prescriptive period provided under Article 291 o the Labor Code. NESTLE PHILIPPINES, INC. v.BENNY A. PUEDAN, JR., JAYFER D. LIMBO, BRODNEY N.  AVILA, ARTHUR C. AQUINO, RYAN A. MIRANDA, RONALD R. ALAVE, JOHNNY A. DIMAYA, MARLON B. DELOS REYES, ANGELITO R. CORDOVA, EDGAR S. BARRUGA, CAMILO B. CORDOVA, JR., JEFFRY B. LANGUISAN, EDISON U. VILLAPANDO, JHEIRNEY  S. REMOLIN, MARY LUZ A. MACATALAD, JENALYN M. GAMUROT, DENNIS G. BAWAG, RAQUEL A. ABELLERA, and RICANDRO G. GUATNO, JR. G.R. No. 220617, January 30, 2017, First Division, PERLAS-BERNABE, PERLAS-BERNABE, J. The imposition of minimum standards concerning sales, marketing, nance and operations are nothing more than an exercise exercise of sound business business practice to increase sales and maximiz maximizee prots. It was only reasonable for the seller to require its distributors to meet various conditions for the grant and continuation of a distributorship agreement for as long as these conditions do not control the means and methods on how the distributor does its distributorship business. Facts: Compla Com plaina inant ntss all allege eged d that that on variou variouss dates, dates, Ocho Ocho de Septi Septiemb embre, re, In Inc. c. (O (ODSI DSI)) and Nestle Nestle Philippines, Inc. (NPI) hired them to sell various NPI products in the assigned covered area. Ater some time, complainants demanded that they be considered regular employees o NPI, but they   were directed to sign contracts contracts o employment with ODS ODSII instead. When complainants complainants reused to comply with such directives, NPI and ODSI terminated them rom their position. Thus, they were constr con strain ained ed to fle a compla complaint int or illeg illegal al dismis dismissal sal,, claimi claiming ng that: that: (a) ODSI is a labor-only  contractor and, thus, they should be deemed regular employees o NPI; and (b) there was no just or authorized cause or their dismissal. ODSI admitted that on various dates, it hired complainants complainants as its employees and assigned them to execute the Distributorship Distributorship Agreement it entered with NPI. However, the business business relationship between NPI and ODSI turned sour when the ormer’s sales department badgered the latter regarding the sales targets. Eventually, NPI downsized its marketing and promotional support rom ODSI which resulted to business reverses and in the latter’s fling o a petition or corporate rehabilitation and, subsequently, the closure o its Nestle unit due to the termination o the Dist Distri ribu buto tors rshi hip p Agre Agreem emen entt and and th thee a ail ilur uree o reha rehabi bili lita tati tion on.. Th Thus us,, ODSI ODSI ar argu gued ed th that at complainantss were not dismissed but merely put in oating status. complainant The LA dismissed the complaint complaint but the NLRC reversed. The CA armed the NLRC. Issues: (1) Whether NPI was accorded due process by the tribunals a quo. (2) Whether ODSI is a labor-only contractor o NPI, and consequently, NPI is complainants’ true employer and, thus, deemed jointly and severally liable with ODSI or complainants’ monetary  claims. Ruling:

 

(1) YES (1)  YES.. The observ observance ance o airness airness in the conduct o any investigati investigation on is at the very heart o  proc proced edur ural al du duee proc proces ess. s. The The es esse senc ncee o du duee pr proc oces esss is to be hear heard, d, and, and, as appl applie ied d to administrative proceedings, this means a air and reasonable opportunity to explain one’s side, or an opportunity to seek a reconsideration o the action or ruling complained o. Administrative due process cannot be ully equated with due process in its strict judicial sense, or in the ormer a ormal or trial-type hearing is not always necessary, and technical rules o procedure are not strictly applied. In this case, NPI essentially claims that it was deprived o its right to due process when it was not notifed o the proceedings beore the LA and did not receive copies and issuances rom the other parties and the LA, respectively. However, as correctly pointed out by the CA, NPI was urnished  via courier o a copy o the amended complaint fled by the complainants against it as shown by  LBC LBC Re Rece ceip iptt No. No. 12 1251 5158 5891 9108 0840 40.. It is also also ap appa pare rent nt th that at NPI NPI was was also also u urn rnis ishe hed d wi with th th thee complainants’ complainant s’ Position Paper, Reply, and Rejoinder. Verily, NPI was indeed accorded due process, but as the LA mentioned, the ormer chose not to fle any position paper or appear in the scheduled conerences.  Assuming arguendo th that at NPI NPI was was so some meho how w de depr priv ived ed o du duee pr proc oces esss by ei eith ther er o th thee labo laborr tribunals, such deect was cured by: (a) NPI’s fling o its motion or reconsideration beore the NLRC; (b) the NLRC’s subsequent issuance o its Resolution dated August 30, 2013 wherein the tribunal considered tribunal considered all o NPI’s arguments arguments as contained contained in its motion; motion; and (c) (c) NPI’s  NPI’s subsequent elevation elev ation o the case to the CA. In Gonzales v. Civil Service Commission, the Commission,  the Court reiterated the rule that “[a]ny seeming deect in [the] observance [o due process] is cured by the fling o a motion or reconsideration,” and that “denial o due process cannot be successully invoked by a party who [was] aorded the opportunity opportunity to be heard x x x.” Similarly, Similarly, in Autencio in Autencio v. Mañara, it  was held that deects in procedural due process may be cured when the party has been aorded the opportunity to appeal or to seek reconsideration o the action or ruling complained o. NO.. A closer examination (2) NO examination o the Distributorship Distributorship Agreement reveals reveals that the relationship o  NPI and ODSI is not that o a principal and a contractor (regardless o whether labor-only or independent), but that o a seller and a buyer/re-seller. As stipulated in the Distributorship  Agreement, NPI agreed to sell its products to ODSI at discounted discounted prices, which in turn will be resold to identifed customers, ensuring in the process the integrity and quality o the said products based on the standards agreed upon by the parties. As aptly explained by NPI, the goods it manuactures are distributed to the market through various distributors, e.g., ODSI, that in turn, re-sell the same to designated outlets through its own employees such as the complainants. Thereore, the reselling activities allegedly perormed by the complainants properly pertain to ODSI, whose principal business consists o the “buying, selling, distributing, and marketing goods and commodities o every kind” and “[entering] into all kinds o contracts or the acquisition o  such goods [and commodities].” Thus, contrary contrary to the CA’s fndings, fndings, the aorement aorementione ioned d stipulati stipulations ons in the Distribu Distributorsh torship ip  Agreement hardly demonstrate control on the part o NPI over the means and methods by which ODSI perorms its business, nor were they intended to dictate how ODSI shall conduct its business as a distributor. Otherwise stated, the stipulations in the Distributorship Agreement do not operate to control or fx the methodology on how ODSI should do its business as a distributor o NPI products, but merely provide rules o conduct or guidelines towards the achievement o a

 

mutually desired result – which in this case is the sale o NPI products to the end consumer. In Steelcase, Inc. v. Design International Selections, Inc., the Inc.,  the Court held that the imposition o  minimum standards concerning sales, marketing, fnance and operations are nothing more than an exercise o sound business practice to increase sales and maximize profts.  Verily, it was only reasonable or NPI – it being a local arm o one o the largest manuacturers o  oods and grocery products worldwide – to require its distributors, such as ODSI, to meet various conditions or the grant and continuation o a distributorship agreement or as long as these conditions do not control the means and methods on how ODSI does its distributorship business, as shown in this case. This is to ensure the integrity and quality o the products which will ultimately all into the hands o the end consumer.  JEBSENS MARITIME, INC., SEA CHEFS LTD., and ENRIQUE M. ABOITIZ, v.FLORVIN G. RAPIZ G.R. No. 218871, January 11, 2017, First Division, PERLAS-BERNABE, J. If the 120 days initial period is exceeded and no such declaration is made because the seafarer  requires further further medical attention, attention, then the temporary temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a  permanent partial or total  permanent total disability already exists. exists. The seaman may of co course urse also be declared declared t to work at any time such declaration is justied by his medical condition. Facts: On March 16, 2011, Jebsens, on behal o its oreign principal, Sea Ches, engaged the services o  respondent to work on board the M/V Mercury as a buet cook or a period o nine (9) months  with a basic monthly salary o US$501.00. On October October 14, 2011,9 responden respondentt was repatriated to the Philippines and underwent consultation, medication, and therapy with the company-designated physician physi cian.. Ater a lengthy lengthy treatment, treatment, the company-d company-design esignated ated physician issued a 7th and Final Summary Medical Report10 and a Disability Grading 11 both dated January 24, 2012, diagnosing respon res ponden dentt with with "Flexo "FlexorCa rCarpi rpi Radial Radialis is Tendin Tendiniti itis, s, Right; Right; Sprai Sprain, n, Right Right thumb thumb;; Exten Extensor sor CarpiUlnaris Tendinitis, Right," and classiying his condition as a "Grade 11" disability pursuant to the disability grading provided or in the 2010 Philippinerespondent Overseas Employment AssociationStandard Employment Contract (POEA-SEC). Dissatisfed, consulted an independent physic phy sician ian,, who classi classifed fed his co condi nditio tion n as a Grade Grade 10 disabi disabilit lity. y. 12 Therea Thereate ter, r, respon responden dentt requested petitioners to pay him total and permanent disability benefts, which the latter did not heed, thus, constraining the ormer to fle a Notice to Arbitrate beore the NCMB.1âwphi1 As the pa part rtie iess a ail iled ed to amic amicab ably ly se sett ttle le th thee ca case se,, the the pa part rtie iess subm submit itte ted d th thee same same to th thee VA or or adjudication. The VA ruled in avor o Rapiz and ordered petitioners to pay him permanent and total disability  benefts in the amount o US$60,000.00 plus attorney's ees in the amount oUS$6,000.00 or their peso equivalent at the time o payment. The VA decision was armed by the CA. Hence, this petition. Issue:

 

 Whether or not respondent respondent Rapiz is entitled to permanent and total disability benefts. benefts. Ruling: No. In this case, case, the VA and the CA' s award award o perman permanent ent and total total disabili disability ty beneft beneftss in respondent's avor was heavily anchored on his ailure to obtain any gainul employment or more than 120 days ater his medical repatriation. However, in  Ace Navigation Company v. Garcia,  Garcia,  the Court explained that the company-designated physician is given an additional 120 days, or a total o 240 days rom repatriation, to give the seaarer urther treatment and, thereater, make a declaration as to the nature o the latter's disability, viz. :  As these provisions operate, the seaarer, upon sign-o sign-o rom his vessel, must report to the compan com pany-d y-desi esign gnate ated d physic physician ian within within three three (3) day dayss rom rom arriva arrivall or diagn diagnosi osiss and treatment. For the duration o the treatment but in no case to exceed 120 days, the seaman is on tempora temporarytotal rytotal disability as he is totally unable to work. He receives his basic  wage during this period until he is declared ft to work or his temporary disability is acknow ack nowled ledged ged by the compan companyy to be perman permanent ent,, eit either her partia partially lly or totall totally, y, as his condition is defned under the POEA-Standard Employment Contract [(SEC)] and by  applicabl appli cablee Philippin Philippinee laws. If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. The seaman may of course also be declared t to work at any time such declaration is justied by his medical condition. xxxx  As we outlined above, above, a temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either tness to work or the existence of a permanent disability.  In the present case, while the initial 120-day treatment or temporary total disability period  was exceeded, the company-designated company-designated doctor duly made a declaration well within the extended 240-day period that the petitioner was ft to work. (Emphases and underscoring in the original)  Accordingly, the Court laid down the ollowing guidelines that shall govern seaarers' claims or permanent and total disability benefts: 1. The company-designated physician must issue a fnal medical assessment on the seaarer's disability grading within a period o 120 days rom the time the seaarer reported to him; 2. I the company-designated physician ails to give his assessment  within the period o 120 days, without without any justifable reason, then the seaarer's seaarer's disability becomes becomes permanent and total; 3. I the company-designated physician ails to give his assessment within the period period o 120 days days with with a sucie sucient nt justi justifca fcatio tion n (e. (e.g. g. seaar seaarer er req requir uired ed urthe urtherr medica medicall treatment or seaarer was uncooperative), then the period o diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sucient justifcation to extend the period; and 4. I the company-designated

 

physician still ails to give his assessment within the extended period o 240 days, then the seaarer's disability becomes permanent and total, regardless o any justifcation. STATUS MARITIME CORPORATION, AND ADMIBROS SHIPMANAGEMENT CO., LTD. v. RODRIGO C. DOCTOLERO G.R. No. 198968, January 18, 2017, Third Division, BERSAMIN, J.  W hile hile the fact that Doctolero suered the disability during the term of his contract was undisputed, undisputed, it was evident that he had led his complaint for disability benets before the company-designated   physician could determine the nature and extent of his disability, or before even the lapse of the initial init ial 120-day 120-day period. period. With Doctole Doctolero ro still undergoin undergoing g further further tests, tests, the company-d company-desig esignate nated  d   physician had no occasion to determine the nature and extent of his disability upon which to base Doctolero's Doctolero 's "t to work" certication or disability grading. Facts: On July 28, 2006, Status Maritime, acting or and in behal o Admibros as its principal, hired Doctolero as Chie Ocer on board the vessel M/V Dimitris Manios II or a period o nine months  with a basic monthly salary o US$1,250.00. Doctolero underwent the. required. Pre Pre-Employment -Employment Medical Examination (PEME) prior to his embarkation, and was declared "ft to work." He boarded the vessel in August 2006. On October 28, 2006, while M/V Dimitris Manios II was in Mexico, Doctolero experienced chest and abdominal pains. He was brought to a medical clinic in Vera Cruz, Mexico. When no clear diagnosis could be made, he resumed work on board the vessel. In the evening o the same day, however, he was brought to Clinic San Luis, also in Mexico, because he again complained o  abdominal pains. He was then diagnosed to be suering rom "Esophago-Gastritis-Duodenitis." The attending physician, Dr. Jorge Hernandez Bustos, recommended his repatriation. On October 29, 2006, Doctolero again experienced diculty o breathing while waiting or his return ight schedule. He inormed the ship's agent o his condition and requested assistance, but the latter extended no assistance to him. Thus, he, by himsel, went to the Hospitales Nacionales,  where he was admitted. He paid the hospital bills amounting to MXN$7,032.17 on his own. Upon discha dis charge rge,, he sought sought assist assistanc ancee rom rom the Philip Philippin pinee Embas Embassy sy un until til his repatr repatriat iation ion to the Philippines in the second week o November 2006. On November 16, 2006, the company-designated physician evaluated Doctolero's condition and ound oun d normal normal upper upper gastro-in gastro-intesti testinal nal endoscopy endoscopy and negative negative H. pylori pylori test.6 Doctolero was recommended or several other tests that were, however, not administered. On January 22, 2007, on account o the illness suered while working on board the M/V Dimitris Manios II, Doctolero fled in the NLRC his complaint demanding payment o total and permanent disability benefts, reimbursement o medical and hospital expenses, sickwage allowance, moral and exemplary damages, and legal interest on his claims. Issue:

 

 Whether or not Doctolero is entitled to claim permanent and total disability benefts rom the petitioners. Ruling: NO. Permanent and total disability is defned m Article 1 98(c)(1) o the Labor Code, Code, to wit:

(c) (c) (1) (1)

xxxx The The ol ollo lowi wing ng disa disabi bili liti ties es sha shall ll be be dee deeme med d tota totall and and perm perman anen ent: t: Tempor Temporary ary total total disabi disabilit lityy last lasting ing contin continuou uously sly or more more than than on onee hundr hundred ed twenty twenty days, days, except as otherwise provided or in the Rules. The relevant rule is Section 2, Rule X, o the Rules and Regulations implementing Book IV  of the Labor Code, Code, which states: Period of entitlement entitlement. - (a) The income beneft shall be paid beginning the Jirst day o such disability. I caused by an injury or sickness it shall not be paid longer than 120 consecutive clays except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days rom onset o disability in which case beneft or temporary temp orary total disability disability shall be paid. However, However, the System System may declare the total and permanent status at anytime ater 120 days o continuous temporary total disability as may  be warranted by the degree o actual loss or impairment o physical or mental unctions as determined by the System. These provisions have to be read together with the POEA-SEC, whose Section 20(3) states: Upon sign-o rom the vessel or medical treatment, the seaarer is entitled to sickness allowance equivalent to his basic wage until he is declared ft to work or the degree o  permanen perma nentt disability disability has been assessed by the company-desig company-designated nated physician physician but in no case shall this period exceed one hundred twenty (120) days.

 Applying the aorementioned provisions, we fnd the fling o the respondent's claim to be premature. In order or a seaarer's claim or total and permanent disability benefts to prosper, any o the ollowing conditions should be present: (a)

The compan company-des y-designa ignated ted physici physician an ailed ailed to issue a declaratio declaration n as to his ftnes ftnesss to engage engage in sea duty or disability even ater the lapse o the 120-day period and there is no indication that urther medical treatment would address his temporary total disability, hence, justiy an extension o the period to 240 days;

(b) (b)

24 240 0 days days ha had d laps lapsed ed wi with thou outt an anyy ce cert rtif ifca cati tion on is issu sued ed by th thee comp compan anyy desi design gnat ated ed physician;

(c)

The compa companyny-des design ignate ated d physici physician an declar declared ed that he is ft or sea duty duty within within the the 120-day  120-day  or 240-day period, as the case may be, but his physician o choice and the doctor chosen

 

under Section 20-8(3) o the POEA-SEC are o a contrary opinion; (d) (d)

The The co comp mpan any-d y-des esig igna nate ted d ph phys ysic icia ian n ac ackn know owle ledg dged ed th that at he is pa part rtia iall llyy perm perman anen entl tly  y  disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well;

(e)

The compan company-desi y-designat gnated ed physicia physician n recogni recognized zed that that he is totally totally and perman permanently ently disabled disabled but there is a dispute on the disability grading;

( ())

The The comp compan anyy-de desi sign gnat ated ed phys physic icia ian n dete determ rmin ined ed th that at hi hiss medi medica call cond condit itio ion n is no nott compensable or work-related under the POEA-SEC but his doctor-o-choice and the third doctor selected under Section 20-B(3) o the POEA-SEC ound otherwise and declared him unft to work;

(g)

The compan company-desi y-designat gnated ed physicia physician n declared declared him him totally totally and perman permanently ently disabled disabled but but the employer reuses to pay him the corresponding benefts; and

(h (h))

The The comp compan anyy-de desi sign gnat ated ed ph phys ysic icia ian n de decl clar ared ed hi him m part partia iall llyy an and d perm perman anen entl tlyy di disa sabl bled ed  within the 120-day or 240-day period but he remains incapacitated to perorm his usual sea duties ater the lapse o said periods.16

 While the act that Doctolero suered the disability during the term o his contract was undisputed, it was evident that he had fled his complaint or disability benefts befo before re the company-designated physician could determine the nature and extent of his disability, or before even the lapse of the initial 120-day period . With Doctolero still undergoing urther tests, the compan com pany-d y-desi esign gnate ated d physic physician ian had no occasi occasion on to determ determine ine the nature nature and exten extentt o his disabi dis abilit lityy upon upon which which to ba base se Docto Doctoler lero's o's "ft to work" work" cer certif tifcat cation ion or disab disabili ility ty gradin grading. g. Consequently, the petitioners correctly argued that Doctolero Doctolero had no cause o action or disability  pay and sickness allowance at the time o the fling o his complaint. MAERSK FILIPINAS CREWING INC., and MAERSK CO. IOM LTD. v. JOSELITO R. RAMOS G.R. No. 184256, January 18, 2017, First Division, SERENO, CJ. The POEA Standard Employment Contract was designed primarily for the protection and benet of  Filipino seamen in the pursuit of their employment on board ocean-going vessels. In resolving dispu dis pute tess rega regardi rding ng disabi disabilit lityy be bene nets ts,, its pr provi ovisio sions ns must must be “cons “constru trued ed and applie applied d fairly fairly,, reasonably, and liberally in the seamen’s favor, because only then can the provisions be given full  eect.”  Facts:  Within the contract period and while on board the vessel, on November 14, 2001, private respondent’s let eye was hit by a screw. He was reerred to another ophthalmologist who opined that “no more improvement can be attained on the let eye but patient can return back to duty   with the let eye eye disabled by 30%.”

 

Since private Since private responden respondent’s t’s demand demand or disability disability beneft[s] beneft[s] was rejected by petitioner petitioners, s, he then fled with the NLRC a complaint or total permanent disability, illness allowance, moral and exemplary damages and attorney’s ees. The parties fled with the NLRC their respective position papers, reply, and rejoinder. Meanwhile, Dr. Dolor stated that although private respondent’s let eye cannot be improved by  medical treatment, he can return to duty and is still ft to work. His normal right eye can compensate or the discrepancy with the use o correctional glasses. On October 5, 2002, private respondent was examined by Dr. Roseny Mae Catipon-Singson o  Casa Medica, Inc. (ormerly MEDISERV Southmall, Inc.), Alabang, Muntinlupa City and was diagno dia gnosed sed to have have ”tr ”traum aumati aticc catara cataract ct with with cornea corneall scarin scaring, g, updraw updrawn n pu pupil pil o the anter anterior ior segment o maculapathy OS. His best corrected vision is 20/400 with diculty.” Dr. CatiponSingson opined that private respondent “cannot be employed or any work requiring good vision unless condition improves.” Issue:  Whether respondent is partially disabled and thereore entitled entitled to disability compensation. compensation. Ruling: Responde Respo ndent nt suers suers from from perman permanent ent partia partiall disabi disabilit lity y and is entitl entitled ed to disabi disabilit lity  y  compensation. Disability does not reer to the injury or the pain that it has occasioned, but to the loss or impairment o earning capacity. There is disability when there is a diminution o  earning power because o actual absence rom work. This absence must be due to the injury or illness arising rom, and in the course o, employment. Thus, the basis o compensation is reduction o earning power. Section 2 o Rule VII o the Amended Rules on Employees’ Compensation provi provides: des: (c) A disability is partial and permanent i as a result o the injury or sickness the employee suers a permanent partial loss o the use o any part o his body. Permanent partial disability occurs when an employee loses the use o any particular anatomical part o his body which disables him to continue with his ormer work.  As early as 13 April 2002, Dr. Dolor had in act diagnosed respondent’s let eye as permanently  disabled. The curability o the injury “does not preclude an award or disability because, in labor laws, disability need not render the seaarer absolutely helpless or eeble to be compensable; it is enough that it incapacitates him to perorm his customary work.” Indeed, the operation, which supposedly led to the correction o respondent’s vision, took place in 2003. Respondent sustained his injury way back in 2001. During the span of roughly two years, he was not able to reassume work as a seaman, resulting in the loss and impairment of his earning capacity. It is also interesting to note that despite petitioners’ contentions that respondent had been diagnosed as t to return to work, no reemployment oer was ever extended to him.  As to the extent and amount o compensation, compensation, petitioners stress that Section 3254 o the POEA  Standard Terms and Conditions Governing the Employment o Filipino Seaarers on Board Ocean

 

Going Vessels (Standard Employment Contract) only provides disability compensation benefts or at least 50% loss o vision in one eye. Since the schedule does not include the injury suered by respondent, they assert that the award o disability benefts is unwarranted. The Court fnds no merit in this argument. The POEA Standard Employment Contract was designed primarily or the protection and beneft o Filipino seamen in the pursuit o their employment on board ocean-going vessels. In resolving disputes regarding disability benefts, its provisions must be “construed and applied airly, reasonably, and liberally in the seamen’s avor, because only then can the provisions be given ull eect.” Besides, the schedule o disabilities under Section 32 is in no way exclusive. Section 20.B.4 o the same POEA Standard Employment Contract clearly provides that “[t]hose illnesses not listed in Section 32 o this Contract are disputably presumed as work related.” This provision only means that the disability schedule also contemplates injuries not explicitly listed under it. REYNALDO Y. SUNIT v. OSM MARITIME SERVICES, INC., DOF OSM MARITIME SERVICES  A/S, and CAPT. ADONIS B. DONATO G.R. No. 223035, February 27, 2017, Third Division, VELASCO, JR., J. The appointed third-party physician must arrive at a denite and conclusive assessment of the seafarer's disability or tness to return to work before his or her opinion can be valid and binding between the parties. Facts: Petitioner Reynaldo Sunit (Sunit) was hired by respondent OSM Maritime Services, Inc. (OSM Maritime) to work onboard the vessel Skandi Texel as Able Body Seaman or three (3) months. Deemed incorporated in the employment contract is the 2010 Philippine Overseas Employment  Agency Standard Employment Contract (POEA-SEC) and the NIS AMOSUP CBA. During his employ emp loymen ment, t, Sunit Sunit ell ell rom rom the vessel' vessel'ss tank tank and suere suered d a broken broken right right emur. emur. He was immedi imm ediate ately ly broug brought ht to a hospit hospital al in the Nether Netherlan lands ds or tre treatm atment ent and and was event eventual ually  ly  repatriated due to medical reason. Upon his arrival in Manila on October 6, 2012, he immediately underwent a post-employment medical examination and treatment or his injury, wherein the company-designated physician diagnosed him to be suering rom a ractured emur. Ater 92 days o treatment, the companydesignated doctor issued a Medical Report giving Sunit an interim disability Grade o 10. Dissatisfed with the company doctor's January 13, 2013 medical report, Sunit sought the opinion o another doctor, Dr. Venancio P. Garduce (Dr. Garduce), who recommended a disability grade o three (3) in his Medical Report dated February 6, 2013. Ater urther medical treatment, petitioner was assessed with a fnal disability grade o 10 by the company physician o respondent OSM Maritime, Dr. William Chuasuan, Jr. (Dr. Chuasuan), on February 15, 2013. OSM Maritime oered petitioner disability beneft o $30,225 in accordance with the disability Grade 10 that the company-designated doctor issued. Sunit, however, reused the oer and fled a claim or a disability beneft o USD$150,000.00 based on the POEA-SEC and NIS AMOSUP CBA.

 

During the pendency o the case with the Labor Arbiter (LA), the parties agreed to consult Dr. Lyndon L. Bathan (Dr. Bathan) or a third opinion. Dr. Bathan issued a Medical Certifcate repatriation . Dr. recommending a Grade 9 disability on February 17, 2014, 499 days from his repatriation. untt to work work and recommended him to undergo further Bathan Bath an likewise likewise assessed Sunit as un rehabilitation.. rehabilitation The LA awarded Sunit a disability beneft in the amount o $13,060. Sunit appealed to NLRC,  which modifed the LA’s fndings and awarded Sunit Sunit a permanent and total disability beneft beneft.. The NLRC reasoned that Sunit is considered as totally and permanently disabled since Dr. Bathan, the third doctor, issued the Grade 9 disability recommendation ater the lapse o the 240-day period required or the determination o a seaarer's ftness to work or degree o disability under the POEA-SEC. The OSM Maritime questioned the NLRC's decision in a petition or certiorari certiorari beore  beore the Court o   Appeals. The appellate court reinstated the LA’s ruling as it held that the 240-day period or assessing the degree o disability only applies to the company-designated doctor, and not to the third doctor. It urther held that since the company-designated doctor was able to make a determination o his disability within the 240-day period, then he is not considered as totally and permanently disabled despite the opinion o the third doctor having been rendered ater the lapse o 240 days rom repatriation.

Issue:  Whether or not Sunit Sunit is entitled entitled to permanent permanent and total disability disability benefts. Ruling:  YES. Sunit’s disability and incapacity to resume working clearly continued or more than 240  YES. Sunit’s days. day s. Applyi Applying ng Articl Articlee 192 (c)(1) (c)(1) o the Labor Labor Code, Code, Sunit Sunit's 's disabi disabilit lityy should should be consid considere ered d permanent and total despite the Grade 9 disability grading. As Sunit was actually unable to work even ater the expiration o the 240-day period and there was no fnal and conclusive disability  assessment made by the third doctor on his medical condition, it would be inconsistent to declare him as merely permanently and partially disabled. It should be stressed that a total disability does not not requir requiree that that the emplo employee yee be comple completel telyy disabl disabled, ed, or totall totallyy paraly paralyzed zed.. In disabi disabilit lity  y  compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment o one's earning capacity. Indeed, under Section 32 o the POEA-SEC, only those injuries or disabilities that are classifed as Grade 1 may be considered as total and permanent. However, i those injuries or disabilities with a disability grading rom 2 to 14, hence, partial and permanent, would incapacitate a seaarer rom perorming his usual sea duties or a period o more than 120 or 240 days, depending on the need or urther medical treatment, then he is, under legal contemplation, totally and permanently  disabled. In other words, an impediment should be characterized as partial and permanent not only under the Schedule o Disabilities ound in Section 32 o the POEA-SEC but should be so under the relevant provisions o the Labor Code and the Amended Rules on Employee Compensation

 

(AREC) implementing Title II, Book IV o the Labor Code. That while the seaarer is partially  injured or disabled, he is not precluded rom earning doing the same work he had beore his injury or disability or that he is accustomed or trained to do. Otherwise, i his illness or injury  prevents him rom engaging in gainul employment or more than 120 or 240 days, as the case may be, he shall be deemed totally and permanently disabled. In determining whether a disability is total or partial, what is crucial is whether the employee who suered rom disability could still perorm his work notwithstanding the disability he met. A  permanent partial disability presupposes a seaarer's ftness to resume sea duties beore the end o  the 120/240-day medical treatment period despite the injuries sustained, and works on the premise that such partial injuries did not disable a seaarer to earn wages in the same kind o   work or similar nature nature or which he was trained. Permanent disability is defned as the inability o a worker to perorm his job or more than 120 days (or 240 days, as the case may be), regardless o whether or not he loses the use o any part o  his body. Total disability, meanwhile, means the disablement o an employee to earn wages in the same kind o work o similar nature that he was trained or, or accustomed to perorm, or any  kind o work which a person o his mentality and attainments could do. Under Article 192(c)(1) o the Labor Code, disability that is both permanent and total disability is defned as "temporary total disability lasting continuously or more than one hundred twenty  days, except as otherwise provided in the Rules." The case o Vergara v. Hammonia Maritime Services, Inc., in harmonizing the provisions o the Labor Code and the AREC with Section 20 (B)(3) o the POEA-SEC (now Section 20 [A][3] o the 2010 POEA-SEC), POEA-SEC), clarifes that the 120- day period given to the employer to assess the disability o  the seaarer may be extended to a maximum o 240 days.  As these provisions operate, the seaarer, upon sign-o rom his vessel, must report to the company-designated company-design ated physician within three (3) days rom arrival or diagnosis and treatment. For the duration o the treatment but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally unable to work. He receives his basic wage during this period until he is declared ft to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defned under the POEA Standard Employment Contract and by applicable Philippine laws. I the 120 days initial period is exceeded and no such declaration is made because the seaarer requires urther medical attention, then the temporary  total disability period may be extended up to a maximum o 240 days, subject to the right o the employer to declare within this period that a permanent partial or total disability already exists. The seaman may o course also be declared ft to work at any time such declaration is justifed by  his medical condition. From the above-cited laws, it is the company-designated doctor who is given the responsibility to make a conclusive assessment on the degree o the seaarer's disability and his capacity to resume  work within 120/240 120/240 days. The parties, however, are ree to disregard the fndings o the company  doctor, as well as the chosen doctor o the seaarer, in case they cannot agree on the disability  gradings issued and jointly seek the opinion o a third-party doctor pursuant to Section 20 (A)(3) o the 2010 POEA-SEC

 

The above-quoted provision clearly does not state a specifc period within which the third doctor must render his or her disability assessment. This is only reasonable since the parties may opt to resort to a third opinion even during the conciliation and mediation stage to abbreviate the proceedings, which usually transpire way beyond the 120/240 day period or medical treatment. The CA, thus, correctly held that the 240-day period or assessing the degree o disability only  applies to the company-designated doctor, and not the third doctor. Indeed, the employer and the seaarer are bound by the disability assessment o the third-party  physician in the event that they choose to appoint one. Nonetheless, similar to what is required o  the company-designated doctor, the appointed third-party physician must likewise arrive at a defnite and conclusive assessment o the seaarer's disability or ftness to return to work beore his or her opinion can be valid and binding between the parties.  A fnal and defnite disability assessment is necessary in order to truly reect the true extent o  the sickness or injuries o the seaarer and his or her capacity to resume work as such. Otherwise, the correspon corresponding ding disability disability benefts benefts awarded might might not be commensu commensurate rate with the prolonged prolonged eects o the injuries suered. In the case at bench, despite the disability grading that Dr. Bathan issued, Sunit's medical condition remained unresolved. The language o Dr. Bathan's assessment brooks no argument thatt no fnal tha fnal and defnit defnitive ive assess assessmen mentt was made made concer concernin ning g Sunit Sunit's 's disabi disabilit lity. y. I it were were otherwise, Dr. Bathan would not have recommended that he undergo urther rehabilitation. Dr. Bathan's assessment o Sunit's degree o disability, thereore, is still inconclusive and indefnite.  As held in Kestrel Shipping Co., Inc. v. Munar, the company-designated company-designated physician is expected to arrive at a defnite assessment o the seaarer's ftness to work or permanent disability within the period o 120 or 240 days. That should he ail to do so and the seaarer's medical condition remains unresolved, the seaarer shall be deemed totally and permanently disabled. In Carcedo v. Maine Marine Phils., Inc., the Supreme Court ruled that the company-designated physician physi cian's 's disability disability assessment assessment was not defnitiv defnitivee since since the seaarer seaarer continued continued to require require medical treatments thereater. Thus, because the doctor ailed to issue a fnal assessment, the disability o the seaarer therein was declared to be permanent and total. In Fil-Pride Shipping Company, Inc. v. Balasta, the Court declared that the company-designated physician must arrive at a defnite assessment o the seaarer's ftness to work or permanent disability within the period o 120 or 240 days pursuant to Article 192 (c)(1) o the Labor Code and Rule X, Section 2 o the AREC. I he ails to do so and the seaarer's medical condition remains unresolved, the latter shall be deemed totally and permanently disabled. Thus, the Supreme Court considered the ailure o the company doctor to arrive at a defnite assessment o the seaarer's ftness to work or permanent disability within the said period in holding that the seaarer was totally and permanently disabled. To reiterate, the company doctor or the appointed third-party physician must arrive at a defnite and conclusive assessment o the seaarer's disability or ftness to return to work beore his or her opinion can be valid and binding between the parties. Dr. Bathan, whose opinion should have bound the parties despite the lapse o the 120/240 day period, did not make such defnite and conclusive assessment.

 

 At this juncture, it bears to recapitulate the procedural requisites under the rules and established  jurispn1dencee where the parties opt to resort to the opinion o a third doctor:  jurispn1denc First, according to the POEA-SEC and as established by Vergara, Vergara, when  when a seaarer sustains a workrelated illness or injury while on board the vessel, his ftness or unftness or work shall be determined by the company-designated company-designated physician. Second , i the seaarer disagrees with the fndings o the company doctor, then he has the right to engage the services o a doctor o his choice. I the second doctor appointed by the seaarer disagrees with the fndings o the company doctor, and the company likewise disagrees with the fndings fndi ngs o the second doctor, then a third doctor doctor may be agreed agreed jointly jointly between the employer and the seaarer, whose decision shall be fnal and binding on both o them. It must be emphasized that the language o the POEA-SEC is clear in that both the seaarer and the employe employerr must must mutua mutually lly agree to seek seek the opinion opinion o a thi third rd doctor doctor.. In the event event o  disagr dis agreem eement ent on the services services o the third doctor, doctor, the seaa seaarer rer has the right right to instit institut utee a complaint with the LA or NLRC. Third, despite the binding eect o the third doctor's assessment, a dissatisfed party may institute a complaint with the LA to contest the same on the ground o evident partiality, corruption o the third doctor, raud, other undue means, lack o basis to support the assessment, or being contrary  to law or settled jurisprudence. jurisprudence. MST MARINE SERVICES (PHILIPPINES), INC., THOME SHIP MANAGEMENT PTE LTD.  AND/OR ALFONSO RANJO DEL CASTILLO v. TEODY D. ASUNCION G.R. No. 211335, March 27, 2017, Third Division, REYES, J.  A temporary temporary total disability becomes permanent permanent when so declared by the company-designated  company-designated   physician within the period period allowed, or upon expiration expiration of the maximum maximum 240-day medical treatment treatment  period in case of absence of a declaration of of tness or or permanent permanent disability. Facts: Teody Asuncion worked with MST Marine as a motorman on board the vessel M/V Monte Casino. Sometime in July 16, 2009 he ell down the oor and elt pain on his back which persisted. Upon  Asuncion's arrival on August 22, 2009, he was reerred to Dr. Cruz, a company-designated company-designated physician at the Manila Doctors Hospital. He was given the initial diagnosis o "Lumbosacral Strain," but to rule out other possibilities, Asuncion was subjected to a magnetic resonance imaging (MRI) which showed normal results. Still, Asuncion complained o low back pains. He  was advised to undergo electromyography-nerve electromyography-nerve conduction velocity (EMG-NCV) and to continue with his medications. Results o his EMG-NCV turned out normal. Upon Asuncion's request, his therapy sessions were done at St. Paul's Hospital in Iloilo City. On January 6, 2010, during the period he was still undergoing therapy, Asuncion fled a complaint or total and permanent disability benefts with the Labor Arbiter. Two months later, on March 10, 2010, Asuncion consulted Dr. Escutin, a private physician, who, ater a physical examination,

 

diagnosed him with "Chronic Low Back Pain Syndrome, Lumbar Spondylolisthesis L4/L5 and Degenerativee Joint Disease." According to Dr. Escutin, Asuncion has a permanent disability and is Degenerativ unft or sea duty in whatever capacity as a seaman. The Labor Arbiter, NLRC and CA ruled in  Asuncion’s abor. abor. Issue:  Whether or not Asuncion Asuncion is en entitled titled to total and permanent disability benefts. benefts. Ruling: NO. Mere lapse o the 120-day period itsel does not automatically warrant the payment o total NO. Mere and permanent disability benefts.49 In Vergara v. Hammonia Maritime Services, Inc., et al.,50 the Court ruled that a temporary total disability becomes permanent when so declared by the company-designated physician within the period allowed, or upon expiration o the maximum 240-day medical treatment period in case o absence o a declaration o ftness or permanent disability. For work-related illnesses acquired by seaarers rom the time the 2010 amendment to the POEA-SEC took eect, the declaration o disability should no longer be based on the number o days the seaarer was treated or paid his sickness allowance, but rather on the disability grading he received, whether rom the company-designated physician or rom the third independent physician, i the medical fndings o the physician chosen by the seaarer conicts with that o the company-designated company-design ated doctor. Moreover, while a seaarer is not precluded rom seeking a second opinion or consulting his own physician, i his physician's conclusion is contrary to that o the company-designated physician, the rule is clear that a third physician must be jointly appointed by the employer and the seaarer or a fnal assessment. Without a third-doctor consultation and in the absence o any indication  which would cast doubt on the veracity o the company-designated company-designated physician's assessment, the company-designated physician's fndings shall prevail. The Court has observed in Philippine Hammonia Hamm onia Ship Agency, Agency, Inc., et al. v. Dumadag, Dumadag, that the third-docto third-doctor-ree r-reerral rral provision provision o the POEA-SEC has been honored more in the breach than in the compliance. This is unortunate considering that the provision is intended to settle disability claims voluntarily at the parties' level  where the claims can be resolved more speedily than i they were brought to court. Thus, ollowing ollo wing Dumadag, Dumadag, the Court Court upheld upheld the fndings fndings o the company-d company-desig esignated nated physician in Maersk-Filipinas Crewing, Inc. v. Jaleco, where the complainant therein also disregarded the procedure or conict-resolution conict-resolution under the POEA-SEC. The same circumst circumstance ance exists in Asuncion Asuncion's 's case - he neither sought to be reerred to a THIRD THIRD Doctor nor did he oer any explanation or his non-observance o this procedure. As a matter o  act, when he fled the complaint or payment o disability benefts on January 6, 2010, he did so  without any actual medical basis. To recall, it was only on March 10, 2010 when Asuncion consulted his own physician, whereas, the company-designated physician assessed Asuncion with Disability Grade 8 on March 16, 2010. Thus, at the time he fled his complaint, there was no medical basis supporting his claim at all. Asuncion's complaint was clearly premature. Be that as it may, the Supreme Court ruled that Asuncion is entitled to keep the P2,797,080 he received rom petitioners as conditional satisaction o the NLRC's judgment, because to hold otherwise is disadvantageous and inequitable to the employee.

 

 WILMER O. DE ANDRES v. DIAMON H MARINE SERVICES & SHIPPING AGENCY, INC., et.al G.R. No. 217345, July 12, 2017, Division, MENDOZA, J.  A seafarer claiming disability benets is required to submit himself to a post-employment post-employment medical  examination by a company-designated company-designated physician within 3 working days from repatriation. Failure to comply with such requirement results in the forfeiture of the seafarer's claim for disability benets. Exception to this are: (1) when the seafarer is incapacitated to report to the employer upon his repatriation; repatriatio n; and (2) when the employer inadvertently inadvertently or deliberately refused refused to submit the seafarer  to a post-employment post-employment medical examination by a company-designated company-designated physician. Facts: Petitioner was hired by respondent agency or and in behal o its Taiwanese principal. While  working at the vessel, he sustained an open racture and underwent operation in Taiwan. He was confned or several days. Beore he was repatriated, De Andres was made to sign a MOA, stipulating that the respondents agreed to pay him a sum o money and gave him a plane ticket back to the Philippines, and that, in return, he would not fle any complaint against the respondents in the uture. De Andres claimed, however, that he was orced to sign the agreement as he would not be able to return to the Philippines i he would not sign it. The present controversy involves the claim o permanent and total disability benefts o De  Andres. De Andres avers that he reported reported on time to the respondents respondents with respect respect to his disabili disability  ty  claims upon repatriation but they reused to acknowledge his claim and ailed to subject him to medical examination. On the other hand, the respondents counter that it was De Andres who neglected to submit himsel to the post-medical examination through the company-designated physician. Issues: (1) Whether De Andres suciently complied with the reportorial requirement. (2) Whether the quitclaim presented by respondent was valid. Ruling: (1) YES. YES. De Andre Andress did his part when he immedia immediatel telyy report reported ed to Diamo Diamond nd H within within 3  working days rom repatriation. It was the duty o the employer to reer him to a company-designated company-designat ed physician or a post-employment post-employment medical examination knowing ully   well that he had a claim or disability disability benefts. The The respondents, however, however, ailed to do so.  A seaarer claiming disability benefts is required to submit himsel to a post-employment medical examination by a company-designated physician within 3 working days rom repatriation. Failure to comply with such requirement results in the oreiture o the seaarer's claim or disability benefts. Exception to this are: (1) when the seaarer is incapacitated to report to the employer upon his repatriation; and (2) when the employer

 

inadvertently or deliberately reused to submit the seaarer to a post-employment post-employment medical examination by a company-designated physician. (2) NO. The MOA cannot be considered considered as a valid quitclaim quitclaim because because it lacks a reasonable reasonable consideration. De Andres was not given any reedom to reject it, and the document was not properly explained and notarized by any Philippine government government representative. To be valid, valid, a Deed Deed o Releas Release, e, Waiver Waiver and/or and/or Quitc Quitclai laim m must must meet meet the ollow ollowing ing requirements: (1) that there was no raud or deceit on the part o any o the parties; (2) that the consideration or the quitclaim is sucient and reasonable; and (3) that the contract is not contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. SHARPE SEA PERSONNEL, INC., MONTE CARLO SHIPPING, and MOISES R. FLOREM JR.  v. MACARIO MABUHAY JR. G.R. No. 206113, November 6, 2017, Third T hird Division, LEONEN, J. The failure of company-designated physicians to arrive at a nal and denite assessment of a seafarer’s tness to work or level of disability within the prescribed periods means that the seafarer  shall be deemed to be totally and pe1manently disabled. Facts: Macario G. Mabunay entered into a contract o employment with Sharp Sea on March 23, 2009. He was hired as an oiler aboard the vessel M/V Larissa or a period o 9 months. Mabunay  boarded the vessel on April 14, 2009. The ollowing day, he met an accident while cleaning the engine room. He has since suered pain and numbness in his back. On April 23, 2009, he was allowed to have a medical check-up in Nanjing, China where his attending physician declared him unft to work. Mabunay was medically repatriated on April 29, 2009. Sharpe Sea then asked Mabunay to report to Dr. Cruz, the company-designated physician, or his treatment. He underwent a series o procedures concluding with his discharge rom the hospital December 5, 2009. Mabunay then fled, on January 21, 2010, a case against Sharpe Sea or reimbursement o medical expenses, payment o total disability benefts, and attorney’s ees. He also also consul consulted ted two other other orthop orthopedi edics cs who both diagno diagnosed sed him as not ft to work. work. He submitted their fndings to support his claim or total disability benefts. Sharpe Sea, however, claimed that Mabunay was only assessed with a disability rating o Grade 8, but presented no evidence. The Labor Arbiter ruled in avor o Mabunay and and rejected Sharpe Sea’s claim that he was only  entitled to a disability rating o Grade8 as it was not supported by evidence. The NLRC, on appeal, armed the ruling o the Labor Arbiter. On MR, however, the NLRC, modifed its decision on the basis o a medical report by Dr. Cruz dated August 18, 2009, which was only submitted on MR, supportin supp orting g Sharpe Sharpe Sea’s claim that Mabunay was only entitled entitled to a disability disability rating o Grade 8. Mabunay fled a Petition or Certiorari with the CA, which held that Sharpe Sea ailed to adequately explain the belated submission o the medical report.

 

Issue:  Whether or not Mabunay Mabunay is en entitled titled to total and and permanent disability disability benefts. Ruling: Mabunay is entitled to total and permanent disability benefts. Sharpe Sea repeatedly claimed in the proceedings beore the Labor Arbiter and the NLRC that Mabunay has a disability rating o  Grade 8 yet ailed to produce evidence. Sharpe Sea, however, managed to produce the medical report which they attached to their MR. There was no explanation on why this piece o evidence  was only submitted ater 2 years. Manning and shipping companies are in a better position in accessing, preserving, and presenting their evidence. Moreover, the medical report Moreover, report signed by Dr. Cruz was only an interim interim   disability rating. Citing Magsay Mag saysay say Mariti Maritime me Corp Corp vs Cruz, Cruz, the Court Court held held that that a compan company-de y-desig signat nated ed physic physician ian is expect exp ected ed to issue issue a defnit defnitee assess assessmen mentt within within a period period o 120 or 240 days rom rom medica medicall repatriatio repat riation. n. Interim Interim ratings  ratings are not considered as defnite assessments as they are only initial prognoses. The company-designated physicians ailed to issue either a ft-to-work certifcation or a fnal disability rating within the prescribed period. Thus, Mabunay’s disability is deemed total and permanent.

MAERSK-FILIPINAS CREWING, INC. and AP MOLLER SINGAPORE PTE LTD.  v.ROSEMARY  G. MALICSE (Legal wife of the deceased seafarer Efren B. Malicse, representing the latter's estate) G.R. No. 200576, November 20, 20, 2017, First Division, SERENO, CJ. The entitlement to disability benets of seafarers on overseas work is a matter governed not only by medical ndings, but also by law and contract. By contract, the POEA-SEC and the CBA bind  seafarers and their employers. An overriding instrument also forms part of the covenants of the  parties to each other. Facts: Eren was employed as a seaman by petitioner AP Moller Singapore through its agency, MaerskFilipinas Crewing, Inc. He was declared ft to work at the time o his employment. Four months later Eren got sick while on board Maersk Tide. When rest did not work, he was sent to a hospital in Panama and a ew days later, or on May 29, 2007, he died. The cause o his death as ound by  medical examinations was due to “multiple organ ailure secondary to septicemia” which is severe blood poisoning or inection. Petitioners paid Rosemary USD 1,000 representing burial benefts. As or death benefts, they  oered her USD 40,000 which was equivalent to hal o the death benefts provided by the Collective Bargaining Agreement (CBA) between Maersk and Singapore Organization o Seamen, the union to which her husband belonged. When she demanded a ull copy o the CBA, as well as

 

a copy o the Internati International onal Transport Transport Workers Workers Federation Federation Standard Collective Collective Agre Agreemen ementt (ITF  Agreement) rom petitioners, the latter latter reused. Consequently, Rosemary fled a Complaint beore the Executive Labor Arbiter (LA) or death benefts (among others). Petitioners Petitioners responded that the death o her husband was not caused by a  work-related illness. Rosemary countered by arguing that according to the ITF Agreement, she  was entitled to death benefts regardless o the cause cause o Eren's death. The Decision o the LA sustained Rosemarie’s claim that the ITF Agreement shall prevail over the CBA and the 2000 Philippin Philippinee Overseas Overseas Employm Employment ent Administr Administration ation Standard Employme Employment nt Contract or Seaarers (POEA-SEC). The ITF Agreement had a more benefcial provision on granting death benefts since it awards claims regardless o the seaarer's cause o death. This decision was armed by the NLRC and subsequently, by the Court o Appeals (CA). Issue:  Whether or not the ITF Agreement shall govern the death benefts claimed by Rosemary, despite the terms provided or in the CBA and the POEA-SEC. Held: No. It is the CBA which must govern the claim or death benefts. The entitlement to disability benefts o seaarers on overseas work is a matter governed not only  by medical fndings, but also by law and contract. By contract, the POEA-SEC and the CBA bind seaarers and their employers. An overriding instrument, such as the instant ITF Agreement, also orms part o the covenants o the parties to each other. In awarding death benefts to Rosemary in the amount o USD 82,500, the LA, the NLRC, and the CA based their decision on the ITF ITF Agreement. However, beore claimants claimants may avail themselves themselves o the benefts and applicability o the ITF Agreement, these conditions must frst be met: (1) the seaarer is a member o a union, (2) which is aliated with the ITF, (3) that has entered into a special agreement with petitioners. In the case at bar, although the frst requisite is met, the other two were not. None in the pieces o  evidence adduced by the parties has depicted with clarity the relationship o Eren's labor union Singapore Sing apore Organisatio Organisation n o Seamen Seamen - with the ITF. Furthermore, Furthermore, none o the documents documents herein herein portray that petitioners entered into any special agreement. Given that the ITF Agreement is not an overriding instrument in this case, the Court may apply  either the terms in a seaarer's employment contract provided by the POEA-SEC or under the CBA, i such CBA prevails over and is more benefcial to the employee, in the award o death benefts. Under the POEA-SEC: In case case o work-r work-rela elate ted d death death o a seaar seaarer er during the term o his contract, the employer

Under the CBA: (1) petitione petitioners rs shall shall pay compensa compensation tion to to a seaarer or any death arising rom an

 

shall pay his benefc shall benefciar iaries ies the "Philip "Philippin pinee Currency equivalent to the US $50,000 and an additiona additionall amount amount o US$7,00 US$7,000 0 to each child under the age o twenty-one (21) but no nott ex exce ceed edin ing g o our ur (4) (4) child hildre ren, n, at th thee exchange rate prevailing during the time o 

accident equivalent to USD 80,000. (2 (2)) In case case a sea seaar arer er di dies es r rom om na natu tura rall causes or illness while in the empl em ploy oyme ment nt o th thee Comp Compan any, y, th thee Company Comp any shall pay fty percent percent o the quantum payable or death

payment Comparing these two provisions, the CBA clearly provides higher death benefts o USD 80,000. Howe Ho weve ver, r, th thee ca caus usee o de deat ath h o th thee se seaa aare rerr must must be du duee to an acci accide dent nt;; othe otherw rwis ise, e, hi hiss benefciaries would receive only USD 40,000. That amount is lower than the beneft granted by  the POEA-SEC, which is USD 50,000. But beore benefciaries may receive compensation under the POEA-SEC, there must be substantial evidence that the seaarer died o a work-related illness. In this case, it was not shown that Eren’s cause o death was work-related. His death neither arose rom an accident entitling him to the payment o USD 80,000 under the CBA. Hence Rosemary is only entitled to USD 40,000 as death benefts arising rom the second option provided under the CBA.  ALMARIO LEONCIO v. MST MARINE SERVICES, INC. G.R. No. 230357, December 06, 2017, Third Division, VELASCO, J. Failuree to declar Failur declaree a pr proce ocedur duree in conne connecti ction on to a pre-e pre-exis xistin ting g ill illne ness ss or condit condition ion canno cannott be considered as misrepresentation and failure to declare a pre-existing illness or condition, especially when the employer already had prior that its employee is already suering from an illness or  condition. Facts: Respondent is a domestic manning agency. It hired petitioner to work or its principals or a period o 18 years. In 2001, petitioner was medically repatriated to be treated or his Coronary   Artery Disease/Hypertensive Disease/Hyperten sive Disease by with the company-designated company-designat ed physician. He  was thereater declared ft toCardio-Vascular work and was redeployed, a demotion in rank. Ater several deployments, petitioner was again employed in 2014 as Chie Cook or which he underwent a preemployment medical examination examination and was declared ft to work.  While perorming his duties, petitioner suddenly elt heavy chest pains, shortness o breath, numbness o the let portion o his ace, and hypertensive reaction. He was diagnosed with un unsta stable ble angin anginaa and un under derwen wentt Percut Percutane aneous ous Coron Coronary ary In Inter terven ventio tion. n. He was event eventual ually  ly  medically repatriated or urther treatment under the care o Dr. Nolasco. While undergoing treatment, respondent Dr. Nolasco i petitioner had previously undergone stenting procedures to  which Dr. Nolasco answered in the armative. Because o this, petitioner cut o the medical and sickn sickness ess all allowa owanc nces es provid provided ed to petiti petitione onerr on the ground ground o his ailur ailuree to dec declar laree that that he un under derwen wentt stenti stenting ng proced procedure ures. s. Petiti Petitione onerr therea thereate terr consul consulted ted two other other physic physician ianss who declared unft toor work and that the stents were new and not connected with previous events. He fled ahim complaint disability benefts against respondent.

 

The LA ruled in avor o petitioner and held that respondent had already been aware o his coronary coro nary and hypertensive hypertensive disease but still redeployed redeployed him several several times. times. Moreover Moreover,, the stents stents  were not connected to his most recent sickness which caused his last medical repatriation. The NLRC reversed and held that the ailure to declare the stenting procedure is a misrepresentation that barred his right to claim disability benefts. The CA armed the NLRC. Issue:  Whether or not petitioner committed misrepresentation misrepresentation that bars his recover o disability  benefts. Ruling: The court noted that Section 20(E) o the POEA-SEC reers to concealment o a pre-existing illness or condition. This does not reer to a medical procedure undergone by a seaarer in connection with an illness or condition already known to the employer. Stenting is a procedure to discontinue the progress o his coronary and hypertensive disease and his ailure to declare that he has undergone this procedure does not amount to concealment o a pre-existing illness or condition, especially when respondent already knew that he had this sickness as early as 2001  when he was frst medically repatriated. repatriated. MARSMAN & COMPANY, INC., Petitioner  –versus –versus- RODIL C. STA. RITA, Respondent . G.R. No. 194765, FIRST DIVISION, April 23, 2018, LEONARDO-DE LEONARDO-DE CASTRO, CASTRO, J.  J.

The Court Court has upheld upheld the transf transfer/ er/ab absor sorpti ption on of emplo employee yeess from from one one co comp mpany any to ano anothe ther, r, as successor employer, as long as the transferor was not in bad faithand the employees absorbed by a successor-employer enjoy the continuity of their employment status and their rights and privileges with their former employer. In this this ca case se,, it is impe impera rati tive ve to poin pointt ou outt that that the the inte integr grat atio ion n an and d tran transf sfer er wa wass a ne nece cess ssar ary  y  consequence of the had business transition or corporate reorganization thatspin-off Marsman had  undertaken, which the characteristics of a corporate spin-off. The andand the CPDSI attendant  transfer of employees are legitimate business interests of Marsman. The transfer of employees through the Memorandum of Agreement was proper and did not violate any existing law or jurisprudence.  Jurisprudence has long recognized recognized what are termed as "management prerogatives."Thu prerogatives."Thus, s, Sta.Rita has no cause of action against Marsman in the absence of employee-emplo employee-employer yer relationship. FACTS:

Marsman, a domestic corporation, was formerly engaged in the business of distribution and sale of  pharmaceutical and consumer products for different manufacturers within the country. Marsman purchased purc hased Metro Drug Distribu Distribution tion,, Inc. (Metro Drug), Drug), now Consumer Consumer Prod Products ucts Distribut Distribution ion Services, Inc. (CPDSI), which later became its business successor-in-interest. The business

 

transition from Marsman to CPDSI generated confusion as to the actual employer of Sta. Rita at the time of his dismissal. Marsman temporarily hired Sta. Rita on November 16, 1993 as a warehouse helper. Marsman then conirmed Sta. Rita's status as a regular employee on September 18, 1994 and adjusted his monthly wage to P3,796.00. Marsman administered Sta. Rita's warehouse assignments. Sometime in July 1995, Marsman purchased Metro Drug, a company that was also engaged in the distribu dist ribution tion and sale of pharmaceu pharmaceutica ticall and consumer consumer products, products, from Metro Paciic, Paciic, Inc. The similarity in Marsman's and Metro Drug's business led to the integration of their employees which was formalized in a Memorandum of Agreement. Concomitant to the integration of employees is the transfer of all ofice, sales and warehouse personnel of Marsman to Metro Drug and the latter's assumption of obligation with regard to the affected affe cted employees employees'' labor contract contractss and Collective Collective Bargainin Bargaining g Agreemen Agreement. t. The integra integration tion and transfer of employees ensued out of the transitions of Marsman and CPDSI into, respectively, a holding company and an operating company. In the meantime, on an unspeciied date, CPDSI contracted its logistic services to EAC Distributors (EAC). CPDSI and EAC agreed that CPDSI would provide warehousemen to EAC's tobacco business which operated in EAC-Libis Warehouse. Parenthetically, EAC's use of the EAC-Libis Warehouse was dependent upon the lease contract  between EAC and Valiant Distribution (Valiant), owner of the EAC-Libis Warehouse. Hence, EAC's operations were affected when Valiant decided to terminate their contract of lease on January 31, 2000. In response to the cessation of the contract of lease, EAC transferred their stocks into their own warehouse and decided to operate the business by themselves, thereby ending their logistic service agreement with CPDSI. This sequence of events left CPDSI with no other option but to terminate the employment of those assigned to EAC-Libis Warehouse, including Sta. Rita. Aggrieved, Sta. Rita iled a complaint in the NLRC against Marsman for illegal dismissal with damages in the form of moral, exemplary, and actual damages and attorney's fees. Sta. Rita alleged that his dismissal was without just or authorized cause and without compliance with procedural due process. Marsman iled a Motion to Dismisson March 16, 2000 on the premise that the Labor Arbiter had no jurisdiction over the complaint for illegal dismissal because Marsman is not Sta. Rita's employer. Marsman averred that the Memorandum of Agreement effectively transferred Sta. Rita's employment from Marsman and Company, Inc. to CPDSI. The Labor Arbiter found Marsman as Sta.Rita’s employer and declared it guilty of illegal dismissal. The NLRC, on the contrary, found that using the four-fold test, there is no employee-employer relationship. Meanwhile, the Court of Appeals held that Marsman was Sta. Rita's employer because Sta. Rita was allegedly not part of the integration of employees between Marsman and CPDSI.

 

ISSUE:

Whether or not an employer-employee relationship existed between Marsman and Sta. Rita at the time of Sta. Rita's dismissal. (NO) RULING:

It is imperative to point out that the integration and transfer was a necessary consequence of the business transition or corporate reorganization that Marsman and CPDSI had undertaken, which had the chara characte cteris ristic ticss of a corpor corporate ate sp spinin-off off.. To recal recall, l, a provi proviso so in the Memor Memorand andum um of  Agreement limited Marsman's function into that of a holding company and transformed CPDSI as its main operating company. In business parlance, a corporate spin-off occurs when a department, divisi div ision on or portio portions ns of the corpor corporate ate busine business ss enterp enterpris rise e is sold-o sold-off ff or assign assigned ed to a new corporation that will arise by the process which may constitute it into a subsidiary of the original corporation. Jurisprudence Jurisprudence has long recognized what are termed as "management prerogatives." prerogatives." The spin-off and the attendant transfer of employees are legitimate business interests of Marsman. The transfer of employees through the Memorandum of Agreement was proper and did not violate any existing law or jurisprudence. Analogously, the Court has upheld the transfer/absorption of employees from one company to another, as successor employer, as long as the transferor was not in bad faithand the employees absorbed by a successor-employer enjoy the continuity of their employment status and their rights and privileges with their former employer. Sta. Rita's contention that the absence of his signature on the Memorandum of Agreement meant  that his employment remained with Marsman is merely an allegation that is neither proof nor evidence. It cannot prevail over Marsman's evident intention to transfer its employees. To assert assert that that Marsma Marsman n remain remained ed as St Sta. a. Rita's Rita's emplo employer yer even even aft after er the corpor corporate ate spinspin-off  off  disregards the separate personality of Marsman and CPDSI. Sta. Rita failed to support his claim that  both companies were managed and operated by the same persons, or that Marsman still had complete comp lete control control over CPDSI's CPDSI's operation operations. s. Moreover Moreover,, the existenc existence e of interlock interlocking ing directors directors,, corporate oficers and shareholders without more, is not enough justiication to pierce the veil of  corporate iction in the absence of fraud or other public policy considerations. Sta. Rita also failed to satisfy the four-fold test which determines the existence of an employeremployee relationship. The elements of the four-fold test are: 1) the selection and engagement of  the employees; 2) the payment of wages; 3) the power of dismissal; and 4) the power to control the employee's conduct. There is no hard and fast rule designed to establish the aforesaid elements. Any competent and relevant evidence to prove the relationship may be admitted. Identiication cards, cash vouchers, social security registration, appointment letters or employment contracts, payrolls, organization charts, and personnel lists, serve as evidence of employee status.

 

REYMAN G. MINSOLA, Petitioner, -versus – NEW CITY BUILDERS, INC. and ENGR. ERNEL FAJARDO, Respondents.

G.R. No. 207613, SECOND DIVISION, January 31, 2018, REYES, JR., J.

For employment to be regarded as project-based, it is incumbent upon the employer to prove that (i) the employee was hired to carry out a specific project or undertaking , and (ii) the employee was notified o the duration and scope o the project . In the case at bar, Minsola was hired by New City Builders to perform work for two different phases in the construction of the Avida 3. There is no quibbling that Minsola was adequately inormed o his employme empl oyment nt status status (as a project project empl employee oyee))   at the time of his engagem engagement ent.. This This is clearl clearly  y  substa sub stanti ntiate ated d by the lat latter ter's 's emplo employme yment nt contr contrac acts, ts, statin stating g tha that: t: (i) he was was hired hired as a projec project  t  employee; and (ii) his employment was for the indicated starting dates therein, and will end on the completion of the project.  Accordingly,  According ly, it is not uncommon uncommon for a construction construction irm to hire project employees to perform work  necessary and vital for its business. Sufice it to say, in William Uy Construction Corp. and/or Uy, et al. v. Trinidad, Trinidad, the Court acknowledg acknowledged ed the unique characteristic o the construction industry   and  emphasized that the laborer's performance of work that is necessary and vital to the employer's construction constructio n business, and the former's repeated rehiring, do not automatically automatically lead to regularization regularization,, viz.: “Generally, length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to the security and  beneits of regularization. But this standard will not be fair, if applied to the construction industry, simply because construction firms cannot guarantee work and unding or its  payrolls beyond the lie lie o each project.”  FACTS:

New City Builders, Inc. (New City) is a corporation duly organized under the laws of the Philippines engaged in the construction business. On December 16, 2008, New City hired Minsola as a laborer for the structural phase of its Avida Tower 3 Project. The employment contract stated that the duration of Minsola's employment will last until the completion of the structural phase. On August  24, 2009, the structural phase of the Avida 3 was completed. Thus, Minsola received a notice of  termination. On August 25, 2009, New City re-hired Minsola as a mason for the architectural phase of the Avida 3. Sometime in December 2009, New City noticed that Minsola had no appointment paper as a mason for the architectural phase. Consequently, New City instructed Minsola to update his employment  record. However, the latter ignored New City's instructions, and continued to work without an appointment paper. Minsola was again summoned to the ofice of New City to sign his appointment  paper, however, he refused to comply and stormed out of the ofice and never reported back to work.

 

Minsola iled a Complaint for Illegal Dismissal, Underpayment of Salary, Non-Payment of 13th Month Pay, Separation Pay and Refund of Cash Bond. Minsola claimed that he was a regular employee of New City as he rendered work for more than one year and that his work as a labore lab orer/m r/maso ason n is necess necessary ary and desira desirable ble to the former former's 's bus busin iness ess.. He claime claimed d that that he was constructively dismissed by New City. The Labor Arbiter (LA) rendered a Decision dismissing the complaint for illegal dismissal. The LA found that Minsola was a project employee who was hired for speciic projects by New City. The fact that Minsola worked for more than one year did not convert his employment status to regular. The NLRC rendered a Decision reversing the LA's ruling. The NLRC found that Minsola was a regu regula larr empl employ oyee ee an and d was was cons constr truc ucti tive vely ly dism dismis isse sed d when when he was was made made to sign sign a pr proj ojec ect  t  employment contract. The CA reversed the NLRC's decision. The CA ruled that Minsola was a project employee. The CA reasoned that Minsola was hired for speciic phases in the Avida 3. He was originally hired as a laborer for the structural phase of the Avida 3. Upon the completion of the structural phase, he was re-hired in a different capacity, as a mason for the architectural phase of  the Avida 3 construction. construction. ISSUES: I.   Whether or not Minsola was a project employee. (YES) II.   Whether or not Minsola was constructively dismissed by New City. (NO) III.   Whethe Whetherr or not Minso Minsola la is entitl entitled ed to his moneta monetary ry claims claims consisti consisting ng of his salary salary

differential, service incentive leave pay differential, holiday pay and 10% attorney's fees. (YES) RULING:

I.

Mi Mins nsol ola a is a Pr Proj ojec ectt Empl Employ oyee ee of New New Ci City ty

Article 294 of the Labor Code, as amended, distinguishes regular from project-based employment as follows: Article 294. Regular and casual employment. — The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of  the employ employer, er, excep exceptt where where th the e employ employmen mentt has been ix ixed ed for a speci speciic ic projec projectt or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. In a project-based employment, the employee is assigned to a particular project or phase, which begins and ends at a determined or determinable time. Consequently, the services of the project  empl em ploy oyee ee may may be la lawf wful ully ly term termin inat ated ed upon upon th the e comp comple leti tion on of su such ch pr proj ojec ectt or phas phase. e. For For employment to be regarded as project-based, it is incumbent upon the employer to prove that (i) the employee was hired to carry out a specific project or undertaking , and (ii) the employee was notified o the duration and scope o the project . In the construction case at bar, Minsola was hired by New Builders to perform work for two different phases in the of the Avida 3. There is noCity quibbling that Minsola was adequately inormed o 

 

his employment status (as a project employee)  at the time of his engagement. This is clearly

substantiated by the latter's employment contracts, stating that: (i) he was hired as a project  employee; and (ii) his employment was for the indicated starting dates therein, and will end on the completion of the project. Accordingly, it is not uncommon for a construction irm to hire project employees to perform work  necessary and vital for its business. Sufice it to say, in William Uy Construction Corp. and/or Uy, et  al. v. Trinidad, the Court acknowledged the unique characteristic o the construction industry and emphas emphasize ized d that that the laborer' laborer'ss perfor performan mance ce of work work that that is necess necessary ary and and vital vital to the employer's construction business, and the former's repeated rehiring, do not automatically lead to regularization,, viz.: regularization

“Generally, length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to the security and beneits of regularization. But this standard will not be fair, if applied to the construction industry, simply because construction irms cannot guarantee work and funding for its payrolls beyond the life of each project.” Additionally, Addition ally, in Malicdem, et al. v. Marulas Industrial Corporation, et al.,   the Court took judicial notice of the fact that in the construction industry, an employee's work depends on the availability of projects. It would be extremely burdensome for the employer, who depends on the availability of  projects, to carry the employee on a permanent status and pay him wages even if there are no projects for him to work on. II.

Minsol Minsola a was not constr construct uctive ively ly dismis dismissed sed by New City City

In labor law, constructive dismissal, also known as a dismissal in disguise, exists "where there is cessat ces sation ion of work, work, becaus because e contin continued ued employ employmen mentt is rende rendered red imp imposs ossibl ible, e, unreas unreasona onable ble or unlikely, as an offer involving a demotion in rank or a diminution in pay" and other beneits. There must be an act amounting to dismissal but made to appear as if it were not. In the case at bar, Minsola failed to advert to any particular act showing that he was actually dismissed or terminated from his employment. Neither did he allege that his continued employ emp loymen mentt with with New City City was render rendered ed imposs impossibl ible, e, unr unreas easona onable ble or unlike unlikely; ly; nor was he demoted, nor made suffer out from of discrimination or disdain. contrary, it was actually Minsola whoto stormed ofany Newact City's ofice and refused to reportOn forthe work. II III. I.

Mi Mins nsol ola a is en enti titl tled ed to Sa Sala lary ry Diff Differ eren enti tial als, s, 13th 13th Mont Month h Pa Pay y Diff Differ eren enti tial als, s, Se Serv rvic ice e Incentive Leave Pay Differentials, Holiday Pay and Attorney's Fees

In claims for payment of salary differential, service incentive leave, holiday pay and 13th month pay, the burden rests on the employer to prove payment. This standard follows the basic rule that  in all illegal dismissal cases the burden rests on the defendant to prove payment rather than on the plaintiff to prove non-payment. This likewise stems from the fact that all pertinent personnel iles, payrolls, records, remittances and other similar documents are in the custody and control of the employer. On the other hand, for overtime pay, premium pays for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business.

 

In the instant case, the records show that Minsola was given a daily wage of Php260.00, which falls below the prevailing minimum wage of Php382.00. Clearly, Minsola is entitled to salary differentials. Likewise, Minsola is entitled to service incentive leave pay differentials, 13th  month pay differentials and holiday pay. On the other hand, Minsola's claims for premium pay for holiday and rest day, as well as night shift differential pay are denied for lack of factual basis, as Minsola failed to specify the dates when he worked during special days, or rest days, or between 10:00 p.m. and 6:00 a.m. Finally, Minsola should likewise be awarded attorney's fees, as the instant case includes a claim for unlawfully withheld wages. TEEKAY SHIPPING PHILIPPINES, INC., AND/OR TEEKAY SHIPPING LTD., AND/OR ALEX VERCHEZ, Petitioners, v. ROBERTO M. RAMOGA, JR., Respondent . G.R. No. 209582, FIRST DIVISION January 19, 2018, TIJAM, J.:

Under the interpretation in Vergara, both the 120-day period under Article 192 (2) of the Labor Code and the extended 240-day period under under Rule X, Section 2 of of its IRR are given full force force and effect. This interpretation is also supported by the case of C.F. Sharp Crew Management, Inc. v. Taok, where the Court enumerated a seafarer's cause of action for total and permanent disability, to wit: a. Th Thee co comp mpan anyy-de desi sign gnat ated ed phys physic icia ian n fa fail iled ed to issu issuee a decl declar arat atio ion n as to hi hiss  itness to engage in sea duty or disability even after the lapse of the 120-day   period and there is no indication that further medical treatment would  address his temporary total disability, hence, justify an extension of the period  to 240 days; b. 240 days days had lapsed lapsed without without any certii certiicat catio ion n be being ing issued issued by the compan companyydesignated physician;

 As it now stands, the mere lapse of 120 days from the seafarer's repatriation without the companycompanydesignated physician's declaration of the itness to work of the seafarer does not entitle the latter to his permanent total disability beneits.

FACTS 

On February 18, 2010, respondent entered into a contract of overseas employment with petitioner to work on board the vessel M/T "SEBAROK SPIRIT". After the mandatory pre-employment medical examination (PEME), respondent was declared it for sea duty. He joined the vessel on April 9, 2010. Barely six (6) months after, he slipped and twisted his left ankle while climbing the stairs on board the said vessel. He underwent an x-ray examination and a surgery was recommended for open reduction reduction and internal internal ixation ixation of the injured injured ankle ankle to prevent prevent its further further displacem displacement. ent. Respondent was repatriated to the Philippines. He underwent a rehabilitation program under the supervision of Dr. Esther G. Go and was operated for open reduction by the company designated physician. On April 8, 2011, the physician issued a certiication stating that [respondent] was it to

 

return to work. Unsatisied with the company doctor's assessment, [respondent] sought the help of  his own docto doctorr issued issued a medica medicall report report declar declarin ing g that that [resp [respond ondent ent]] is unable unable to work work at his previous occupation. Thus, he was declared to be permanently unit in any capacity to resume his sea duties. Consequently, [respondent] lodged a complaint for permanent total disability beneits, sickness allowance allow ance,, medical medical expense expenses, s, damages damages and attorney attorney's 's fees in accordanc accordance e with the terms terms and conditions of the Revised Standard Terms and Conditions Governing the Employment of Filipino Seafarers on Board Ocean-going Vessels. The Labor Arbiter (LA) rendered a Decision in favor of respondent. Upon appeal to the NLRC, the latter in its Decision dated March 30, 2012, afirmed with modiication the decision of the LA by deleting the award of sickness allowance. Petitioner then iled a petition for certiorari before the CA. The CA however afirmed afirmed the ruling of the NLRC. NLRC. ISSUE

Whether or not the CA erred in declaring that respondent is entitled to permanent total disability beneits (YES) RULING

In the case of Elburg Shipmanagement Phils. Inc., et. al. v. Quiogue , this Court harmonized the periods when a disability is deemed permanent and total, thus: An analysis of the cited jurisprudence reveals that the irst set of cases did not award permanent  and total disability beneits to seafarers whose medical treatment lasted for more than 120 days, but not not excee exceedin ding g 240 days, days, be becau cause se (1) the compa companyny-des design ignate ated d physi physicia cian n opine opined d that that th the e seafarer seaf arer required required further further medical treatment treatment or (2) the seafarer seafarer was uncooper uncooperativ ative e with the treatment. Hence, in those cases, despite exceeding 120 days, the seafarer was still not entitled to permanent and total disability beneits. In such instance, Rule X, Section 2 of the IRR gave the company-designated physician additional time, up to 240 days, to continue treatment and make an assessment on the disability of the seafarer. The second set of cases, on the other hand, awarded permanent and total disability beneits to seafarers whose medical treatment lasted for more than 120 days, but not exceeding 240 days, because the company-designated physician did not give a justiication for extending the period of  diagnosis and treatment. Necessarily, there was no need anymore to extend the period because the disability suffered by the seafarer was permanent. In other words, there was no indication that  further medical treatment, up to 240 days, would address his total disability. If the treatment of 120 days is extended to 240 days, but still no medical assessment is given, the inding of permanent and total disability becomes conclusive. The aboveabove-sta stated ted analys analysis is indubi indubitab tably ly gives gives life life to the provi provisio sions ns of the law as enunc enunciat iated ed by Vergara. Under this interpretation, both the 120-day period under Article 192 (2) of the Labor Code and the extended 240-day period under Rule X, Sect Section ion 2 of its IRR are given full force and effect. This interpretation is also supported by the case of C.F. Sharp Crew Management, Inc. v.

 

Taok, where the Court enumerated a seafarer's cause of action for total and permanent disability, to wit:

c.

The companycompany-desig designate nated d physician physician failed failed to issue a declaratio declaration n as to his itness to engage in sea duty or disability even after the lapse of the 120-day period and there is no indication that further medical treatment would address his temporary total disability, hence, justify an extension of the period to 240 days;

d. 240 days had lapsed without any any certiication certiication being being issued by the companydesignated physician; As it now stands, the mere lapse of 120 days from the seafarer's repatriation without the companydesignated physician's declaration of the itness to work of the seafarer does not entitle the latter to his permanent total disability beneits. Here, the records reveal that respondent was medically repatriated on October 4, 2010. It is undisputed that the company-designated physician issued a declaration as to respondent's itness to work on April 8, 2011 or 186 days from his repatriation. Thus, to determine whether respondent  is entitl entitled ed to his perman permanent ent total total disabi disabilit lity y be bene neits its it is neces necessar sary y to examin examine e whethe whetherr the company-d comp any-desig esignate nated d

physicia physician n

has

a

suficien suficientt

justiic justiication ation

to

extend extend

the

period. period.

Examination of the records lead Us to conclude that there is a suficient justiication for extending the period. The company-designated physician has determined that respondent's condition needed further medical treatment and evaluation. Thus, it was premature for the respondent to ile a case for permanent total disability beneits on March 4, 2011 20 because at that time, respondent is not  yet entitled to such beneits. The company-designated physician has until June 1, 2011 or the 240th day from his repatriation to make a declaration as to respondent's itness to work. Neither is the declaration of respondent's own doctor that respondent is unit to return to sea duties dut ies conclu conclusiv sive e as to respo responde ndent nt's 's condit condition ion.. It is well-s well-sett ettled led that that the assess assessmen mentt of the company-designated company-design ated physician prevails over that of the seafarer's own doctor. MANILA SHIPMANAGEMENT & MANNING, INC., and/or HELLESPONT HAMMONIA GMBH & CO. KG and/or AZUCENA C. DETERA Petitioners, -versus – RAMON T. ANINANG, Respondent.

G.R. No. 217135, SECOND DIVISION, January 31, 2018, REYES, JR., J.

The mandatory character  of   of this three-day reporting requirement has been recently reiterated by  the Court in the case of Scanmar Maritime Services, Inc. v. De Leon. In that case, the Court had  occasion to, once more, explain the ratio behind this rule. The Court said: “The rationale for the rule [on mandatory post-employment post-employment medical examination within three days from repatriation by a company-designated physician] is that reporting the illness or  injury within three days from repatriation fairly makes it easier for a physician to determine the cause of the illness or injury.” 

 

This consi This consider dering ing,, in the event event that that a seafar seafarer er fai fails ls to compl complyy wit with h thi thiss mandat mandator oryy rep report orting ing requirement, the POEA Contract provides that the seafarer shall not be qualiied to receive his/her  disability beneits. In fact, and more particularly, the POEA Contract provides that the  seaarer shall   oreit these benefits. benefits. The Court poured over the records of the case, and after a detailed study thereof, rules against the respondent respo ndent.. Aside from the self-servi self-serving ng allegations allegations of the respondent respondent in his pleading pleadings, s, there is no ev evid iden ence ce that that woul would d sugg sugges estt that that he pres presen ente ted d hi hims msel el be beo ore re the the pe peti titi tion oner erss upon upon disembarkation. Indeed, he presented no witnesses that would support his allegations. He did not  even bother to tell the Court who it is that he talked with in the petitioners' ofice — if indeed he went  to the petitioners' ofice — on the day of the meeting. He did not even relay how his request for  medical treatment was supposedly refused, and by whom. No date was even alleged. FACTS:

The respondent is a Filipino seafarer, who signed a Contract of Employment as Chief Engineer with HELLES HEL LESPON PONT T HAMMON HAMMONIA IA GMBH GMBH & CO. KG (petit (petition ioner) er),, throug through h its mannin manning g agent agent in the Philippin Phili ppines, es, petition petitioner er MANILA MANILA SHIPMAN SHIPMANAGEM AGEMENT ENT & MANNING MANNING,, INC. On June 26, 2010, the responden resp ondentt commence commenced d his duties and departed departed the Philippin Philippines es on board board "MT HELLESPONT HELLESPONT CREATION." Sometime thereafter, and while still aboard the vessel, the respondent experienced chest pain and shortness of breath. The respondent requested for early repatriation from the master of the vessel, but was refused, and instead, his contract was extended for another month. On February 2, 2011, the respondent arrived back in the Philippines. According to the petitioners, after the respondent's repatriation, the latter "never voiced out any health concern nor did he report for a post-employment medical examination." They alleged that  they had no contact whatsoever with the respondent until the time that they received the complaint  iled by the respondent. On the other other hand, hand, the re respo sponde ndent nt ass assert erted ed that that upon upon his arr arriva ivall in the Phili Philipp ppine ines, s, he "immedia "imm ediately tely went went to private private responde respondent nt MANSHIP MANSHIP (herein (herein petition petitioner) er) for post-empl post-employmen oyment  t  medica med icall exami examinat nation ion,, but priva private te respon responden dentt MANS MANSHIP HIP failed failed to refer refer him to the compan companyydesignated physician." Petitioners' refusal prompted him to consult with his personal physician, Dr. Achilles C. Esguerra. According to respondent, he was diagnosed with "dilated cardiomyopathy (non-ischemic) S/P CVD Infarct (2010) and chronic atrial ibrillation." On the basis of the foregoing, the respondent sought from the petitioners the payment of disability beneits; medical, surgical, and hospitalization expenses; and sickness allowance. The petitioners denied the claim. Hence, on June 1, 2012, the respondent iled with the Labor Arbiter (LA) a complaint against the petitioners. The LA rendered a Decision ruling in favor of the respondent. The NLRC reversed and set aside the LA decision. The NLRC stated that the respondent's allegation that he submitted himself to the petitioners within three days from his repatriation are mere self-serving assertions that are not  proved by evidence. The CA reversed the NLRC decision, stating that "there is no denying" that the respondent tried to comply with the three-day medical examination deadline, but was refused and ignored by the petitioners. petitioners. ISSUE:

Whether or not the respondent complied with the post-employment medical examination by a company-designated company-design ated physician within three working days upon his return to the Philippines. (NO)

 

RULING:

According to Section 20 (A) (3) of the 2010 "Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-board Oceangoing Ships" (POEA Contract), when the seafarer suffers work-related illness during the term of his contract, the employer shall be liable to pay for: (1) the seafarer's wages; (2) costs of medical treatment both in a foreign port and in the Philippines until the seafarer is declared it to work, or the disability rating is established by the company-designated physician; (3) sickness allowance which shall not exceed 120 days; and (4) reimbursement reimburseme nt of reasonable medicine, traveling, and accommodation expenses. However, to be qualiied for the foregoing monetary beneits, the same section o the POEA Contract requires Contract requires the seaarer seaarer to submit submit himsel/h himsel/hersel ersel to a post-empl post-employmen oymentt medical medical examination by a company-designated physician within three working days upon his return to the Philippines, except when he is physically incapacitated to do so. The seafarer is likewise

required requir ed to repor reportt re regul gular arly ly to the compan company-d y-desi esigna gnated ted physic physician ian during during the cours course e of his treatment. The mandatory character of this three-day reporting requirement has been recently reiterated by the Court Court in the case case of Scanmar Maritime Services, Inc. v. De Leon . In that case, the Court had occasion to, once more, explain the ratio behind this rule. The Court said: “The rationale for the rule [on mandatory post-employment medical examination within three days from repatriation by a company-designated physician] is that reporting the illness or injury within three days from repatriation fairly makes it easier for a physician to determine the cause of the illness or injury.” This consid This consideri ering, ng, in the event event that that a seafar seafarer er fails fails to comply comply with with this this mandat mandatory ory report reporting ing requirement, the POEA Contract provides that the seafarer shall not be qualiied to receive his/her disabilit disab ility y beneits beneits.. In fact, and more particular particularly, ly, the POEA Contract Contract provides provides that the seaarer shall oreit these benefits.

The Court poured over the records of the case, and after a detailed study thereof, rules against the respondent. Aside from the self-serving allegations of the respondent in his pleadings, there is no eviden evi dence ce that that would would sugges suggestt that that he presen presented ted himse himsel l beore beore th the e petiti petitione oners rs upon upon disembarkation . Indeed, he presented no witnesses his allegations. did not  even bother to tell the Court who it is that he talked that withwould in thesupport petitioners' ofice — ifHe indeed he

went to the petitioners' ofice — on the day of the meeting. He did not even relay how his request  for medical treatment was supposedly refused, and by whom. No date was even alleged. In addition, the LA decision which exempts him from the application of the mandatory reporting requirement has no leg to stand on. The POEA Contract is clear and admits of no exceptions, save from the instance when the seafarer is physically incapacitated to report to the employer. In which case, Section 20 (A) (c) requires him to submit a written notice to the agency within the same period as compliance. This has not happened in this case. In this light, the Court could enter no other conclusion than that the respondent failed to comply with the requirements of Section 20 (A) (c) of the POEA Contract. Necessarily therefore, the ruling of the CA and the LA must be reversed and set aside.

 

 ARIEL A. EBUENGA, Petitioner , - versus - SOUTHFIELD AGENCIES, INC., WILHEMSEN SHIP MANAGEMENT HOLDING LTD., AND CAPT. SONNY VALENCIA, Respondents Respondents..

G.R. No. 208396, THIRD DIVISION, March 14, 2018, LEONEN, J.

Section 20(B) of the Philippine Overseas Employment Administration-Sta Administration-Standard ndard Employment Contract  (POEA-SEC) (POEA-S EC) man mandates dates seafarers to see a company company-desi -designat gnated ed physi physician cian for a post-empl post-employm oyment  ent  medical examination, examination, which must be done within three (3) working days from their arrival. Failure to comply shall result in the forfeiture of the right to claim disability beneits.

In cases where the employer refuses to have the seafarer examined, the seafarer's claim for disability  beneits is not hindered by his or her reliance on a physician of his or her own choosing. The Court has in the past, past, under under uniqu uniquee cir circu cumst mstanc ances, es, sustai sustaine ned d the award award of disabi disabilit lityy ben benei eits ts even even if the seafarer's seafa rer's disability disability had been assessed by a personal personal physician. physician. Petitioner, however, has nothing more than bare allegations to back him up. He alls ar too short o the requisite quantum o   proo in labor cases. He ailed to discharge his burden to prove his allegations by substantial  evidence.

Even if this Court were to overlook petitioner's utter failure to substantiate his version of events, no award awa rd o disabi disabilit lity y benefi benefits ts is availi availing ng as petit petitio ioner ner has ailed ailed to demons demonstra trate te that that his afliction was work-related.   For disability to be compensable under Section 20 (B) of the 2000 POEA-SEC, two elements must concur: (1) that the illness or injury must be work-related, and (2) that  the work-related illness or injury must have existed during the term of the seafarer's employment  contract.

Medical literatur Medical literature e undersco underscores res peti petition tioner's er's afliction afliction—disc —disc desi desiccati ccation—a on—ass a degenerati degenerative ve change o intervertebral discs, the incidence o which climbs with age and is a normal part o  disc aging. Hence, it is not a condition peculiarly borne by petitioner's occupation.  Moreover,  petitioner was engaged to serve, not merely as a regular cook, but as chief cook. Whi While le his designation to this position does not absolutely negate occasions o physical exertion, it can nevertheless be reasonably inerred that his engagement did not principally entail intense  physical labor, as would have been the case with other seaarers such as deckhands.   In any  case, contrary to Section 32-A of the POEA-SEC, petitioner failed to demonstrate how his work  necessarily "involved the risks described" and how he contracted his afliction speciically "as a result  of his exposure to the described risks." 

In this this review review,, this this Court Court is bo bound und by ba basic sic logical logical pa param ramete eters. rs. First, as a court court wit witho hout ut the opportunity to personally peruse the evidence, this Court cannot cavalierly disregard the uniform

 

anterior indings of the three (3) tribunals. Second, a factual conclusion must be borne by substantial  evidence. Finally, this Court should not award disability beneits absent a causal relationship between a seafarer's work and ailment. Petition Petitioner's er's case ails in all o these parameters. Hence, his Petition must be denied.

FACTS:

Ebuenga was hired by Southield Agencies, Inc. (Southield) as a chief cook aboard respondent  Wilhemsen Ship Management Holding Ltd.'s (Wilhemsen) vessel, MTV Super Adventure.

About two (2) months into his engagement, or on February 26, 2011, Ebuenga wrote a letter to Southie Sout hield, ld, Wilhemsen Wilhemsen,, and Captain Captain Sonny Sonny Valencia Valencia (Capt. (Capt. Valencia Valencia)) (collect (collectively ively,, resp responde ondents) nts),, asking that he be repatriated as soon as possible "to attend to a family problem." Respondents Respondents acted favorably on this request and Ebuenga was repatriated.

Without consulting Southield's designated physician, Ebuenga had himself checked at St. Luke's Medical Center where he underwent Magnetic Resonance Imaging. The test revealed that he was aflicted afl icted with "Multilev "Multilevel el Disk Dessication, Dessication, from C2-C3 to C6-C7." C6-C7." He was advised advised to undergo undergo physical therapy.

Ebuenga went back to his hometown in Bogtong, Legaspi City to undergo physical therapy sessions. Thereafter, he consulted Dr. Misael Jonathan Ticman, who issued a Disability Report, inding him to be permanently disabled and no longer it to work as a seafarer. Consequently, Ebuenga iled a complaint for permanent disability beneits.

In his Position Paper, Ebuenga disavowed voluntarily seeking repatriation on account of a family concern. He claimed instead that upon embarkation, a crew member died from overfatigue. He reported this death to the International Transport Workers' Federation, which took no action. Incensed at Ebuenga's actions, the captain of the vessel, Capt. Jonathan Lecias, Sr. (Capt. Lecias), coerced him to sign a letter seeking immediate repatriation. Ebuenga also claimed to have reported to Capt. Lecias that he was suffering intense back pain, but the latter refused to entertain this because of the animosity between them. He added that upon repatriation, he sought medical assistance rom the company-designated physician, but was reused. Thus, he was orced to seek treatment on his own.

 

Responden Respon dents, ts, on the other other hand, hand, denied denied that that there there was ever ever an incid inciden entt where where Ebueng Ebuenga a encountered medical problems while on board the vessel. However, they added that Ebuenga's claim for disability beneits could not be entertained as he failed to undergo the requisite postemployment medical examination with the company-designated physician.

Labor Arbiter Savari dismissed Ebuenga's complaint and explained that Ebuenga failed to prove that he had suffered an illness or injury while on board the M/V Super Adventure. She added that  Ebuenga may no longer claim disability beneits for failing to undergo a post-employment medical examination with the company-designated physician.The NLRC denied Ebuenga's appeal. Thereafter, the CA found no grave abuse of discretion on the part of the NLRC.

ISSUE:

Whether petitioner Ebuenga is entitled to permanent permanent disability beneits. (NO)

RULING:

Section 20(B) of the Philippi Section Philippine ne Overseas Overseas Employmen Employmentt Administ Administrati ration-St on-Standar andard d Employmen Employment  t  Contract Cont ract (POEA-SEC (POEA-SEC)) mandates mandates seafarers seafarers to see a company-d company-design esignated ated physician physician for a postpostemployment medical examination, which must be done within three (3) working days from their arrival. Failure to comply shall result in the forfeiture of the right to claim disability beneits:

B. COMPEN COMPENSA SATIO TION N seafarer AND BENEFI BEN EFITS TS work-related FOR IN INJUR JURY Y injury OR ILLNE ILL SS – during The The lia liabi bilit lities ies ofof the employer when the suffers orNESS illness the term his contract are as follows:

3. Upon sign-off sign-off from from the vessel for medical medical treatment treatment,, the seafarer seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared it to work  or the degree degree of perman permanent ent disab disabili ility ty has been been assess assessed ed by the co compa mpany ny-designated physician but in no case shall this period exceed one hundred twenty (120) days. For this this purpos purpose, e, the seafar seafarer er shall shall submit submit himsel himselff to a post-e post-empl mploym oyment  ent  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 beneits. xxx

In Vergara v. Hammonia Maritime Services, Inc. , this Court read the POEA-SEC in harmony with the Labor Code and the AREC in interpreting in holding that:

(a) the 120 days provided under Section 20-B(3) of the POEA-SEC is the period given to the employer to determine itness to work and when the seafarer is deemed to be in a state of  total and temporary disability; (b) the 120 days of total and temporary disability may be extend ext ended ed up to a maximu maximum m of 240 day dayss should should the seafar seafarer er req requir uire e furthe furtherr medic medical al treatment; and (c) a total and temporary disability becomes permanent when so declared by the company-designated physician within 120 or 240 days, as the case may be, or upon the expirati expiration on of the said perio periods ds withou withoutt a declar declarati ation on of eit either her itness itness to work work or permanent disability disability and the seafarer is still unable to resume his regular seafaring duties.

As these provisions operate, the seafarer, upon sign-off from his vessel, must report to the company-designated company-d esignated physician within three (3) days from arrival for diagnosis and treatment .

As we outlined above, a temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the the expi expira rati tion on o the the ma maxi ximu mum m 240240-da day y medi medica call tr trea eatm tmen entt pe peri riod od wi with thou outt a declaration o either fitness to work or the existence o a permanent disability .

In Manota v. Avantgarde Shipping Corporation the Court clariied that:

We note on this point that the obligation imposed by the mandatory reporting requirement  under Section 20(B)(3) of the 1996 POEA-SEC is not solely on the seafarer. It requires the employer to likewise act on the report, and in this sense partakes of the nature of a reciprocal obligation. x x x While the mandatory reporting requirement obliges the seafarer to be present for the post-employment medical examination, which must be conducted within three (3) working days upon the seafarer's return, it also poses the employer the implied obligation to conduct a meaningful and timely examination of the seafarer.

 

In cases cases where where the employ employer er refuse refusess to have have th the e seafar seafarer er exa examin mined, ed, the the seafa seafarer rer's 's cla claim im for disability beneits is not hindered by his or her reliance on a physician of his or her own choosing. The Court has in the past, under unique circumstances, sustained the award of disability beneits even if the seafarer's disability had been assessed by a personal physician.

It is petitioner's claim that respondents failed to deliver their part of the reciprocal obligation by refusing to entertain him when he asked to have himself examined. He insists that their refusal is allegedly an offshoot of his acrimony with them, which began after his report of a colleague's death to the International International Transport Workers' Federation. Petitioner, however, has nothing more than bare allegations to back him up. He alls ar too short o the requisite quantum o proo in labor lab or cases. cases. He ailed ailed to disch discharg arge e his his burden burden to prove prove his allega allegatio tions ns by substa substanti ntial al evidence.

In the irst place, this Court is duty-bound to respect the uniform indings of Labor Arbiter Savari, the NLRC, and the CA. In the context of the present Rule 45 Petition, this Court is limited to resolving resolvin g pure questions questions of law. Accordingly, Accordingly, we do not re-exami re-examine ne conlicti conlicting ng evidence evidence,, reevaluate the credibility of witnesses, or substitute the indings of fact of the NLRC, an administrative body that has expertise in its specialized ield. Nor do we substitute our "own judgment for that of the tribunal in determining where the weight of evidence lies or what evidence is credible." The factual indings of the NLRC, when afirmed by the CA, are generally conclusive on this Court.

Even if this Court were to overlook petitioner's utter failure to substantiate his version of events, no award o disability benefits is availing as petitioner has ailed to demonstrate that his afliction was work-related.

For disability to be compensable under Section 20 (B) of the 2000 POEA-SEC, two elements must  concur: (1) that the illness or injury must be work-related, and (2) that the work-related illness or injury must have existed during the term of the seafarer's employment contract.

The 2000 POEA-SEC deines "work-related injury" as injury resulting in disability or death arising out of and in the course of employment and "work-related illness" as any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of the 2000 POEA-SEC. Thus, the seafarer only has to prove that his illness or injury was acquired during the term of employment to support his claim for sickness allowance and disability beneits.

 

To be "work-related" is to say that there is a "reasonable linkage between the disease suffered by the employ employee ee and his work." work." Se Secti ction on 32-A, 32-A, paragr paragrap aph h 1 of the the POEA-S POEA-SEC EC,, thus, thus, req requir uires es the satisfaction of all of its listed general conditions for an occupational disease and the resulting disability or death to be compensable:

Section 32-A. OCCUPATIONAL DISEASES – For an occupational disease and the resulting disability or death to be compensable, all of the following conditions must be satisied:

(1) The seafarer's work must involve the risks described herein; (2) The disease was contracted as a result of the seafarer's exposure to the described risks; (3) The disease was contracted within a period of exposure and under such other factors necessary to contract it; (4) There was no notorious negligence on the part of the seafarer.

Medical literature underscores petitioner's afliction—disc desiccation—as a degenerative change o intervertebral discs, the incidence o which climbs with age and is a normal part o  disc aging. Hence, it is not a condition peculiarly borne by petitioner's occupation.  Moreover, While e his petitioner was engaged to serve, not merely as a regular cook, but as chief cook. Whil designation to this position does not absolutely negate occasions o physical exertion, it can nevertheless be reasonably inerred that his engagement did not principally entail intense physical labor, as would have been the case with other seaarers such as deckhands.  In any

case, contrary to Section 32-A of the POEA-SEC, petitioner failed to demonstrate how his work  necessarily "involved the risks described" and how he contracted his afliction speciically "as a result of his exposure to the described risks."

Likewise, petitioner needed to be repatriated merely two (2) months into his engagement. This is not disputed. Again, contrary to Section 32-A of the POEA-SEC, the brevity of his engagement  contradicts the likelihood that his disc desiccation—a degenerative ailment requiring prolonged conditions—"was contracted within a period of exposure and under such other factors necessary to contract it."

Petitioner's cause is grossly deicient in several ways. First, he failed to undergo the requisite examination, thereby creating a situation resulting in the forfeiture of his claims. This alone sufices for the denial of his Petition. Second, he posited a narrative of indifference and oppression but  failed failed to adduce adduce even even the sli slight ghtest est substa substanti ntiati ation on of it. He asked asked this this Court Court to overt overturn urn the consistent indingsaof the three (3) tribunals but offered nothing othercan than word Finally, he averred medical condition from which no causal connection behis drawn toas hisproof. brief 

 

engagement

as

chief

cook.

In this review, this Court is bound by basic logical parameters. First, as a court without the opportunity to personally peruse the evidence, this Court cannot cavalierly disregard the uniform anteri ant erior or in indin dings gs of the three three (3) tr tribu ibunal nals. s. Secon Second, d, a factua factuall conclu conclusio sion n must must be borne borne by substant subs tantial ial evidence evidence.. Finally, Finally, this Court Court should not award award disabilit disability y bene beneits its absent a causal causal Petiti itione oner's r's case case a ails ils in all o these these relation rela tionship ship between a seafarer seafarer's 's work and ailment. ailment. Pet

parameters. Hence, his Petition must be denied.

INC.,INTERORIENT MARITIME ENTERPRISE LIBERIA FOR DROMON E.N.E. and JASMIN P.  ARBOLEDA, respondents respondents..

G.R. No. 232892, SECOND DIVISION, April 4, 2018, PERALTA, J.

In determining whether a disease is compensable, it is enough that there exists a reasonable work  connect con nection. ion. It is suficien suficientt that the hypothesis hypothesis on which which the workmen's workmen's claim claim is based is probable probable since probability, not certainty is the touchstone. FACTS:

Petitioner has started work with respondent Interorient Maritime Enterprises, Inc. as an Able Seaman Seam an on board board different different vessels. vessels. Part of petitioner's petitioner's job assignment assignment was to paint paint the ship's ship's pump room and due to the poor ventilation in the said room, petitioner claimed that he was able to inhale residues and vapors coming from the paint and thinner that he used. As such, petitioner suffered shortness of breath and chest pains which he claimed to have reported to the Chief Mate but was told by the latter to just rest. When his condition improved, petitioner continued to perform his duties until he was able to complete his contract on July 6, 2012. Upon his repatriation, petitioner reported immediately to respondent company and asked for a referral to the company physician for a medical examination of his heart condition but the latter ignored igno red petitioner petitioner's 's request. request. Petitione Petitionerr then re-applie re-applied d with responden respondentt company company and was recommended for Pre-Employment Medical Examination (PEME). The result of petitioner's tests revealed that he had cardiovascular disease . Petitioner was not deployed due to the said indings. Thus, petitioner iled a complaint for payment of total and permanent disability beneits and other money claims against respondent claiming that he developed a cardiovascular disease, which whi ch is lis listed ted as an occupa occupatio tiona nall diseas disease e under under Sectio Section n 32-A 32-A of the the Philippine Overseas Employment Administration-Standard Employment Contract (  (P POEA-SEC    OEA-SEC  ). Petitioner claimed that  his illness was brought about by his poor diet, exposure to harmful chemicals and stressful work  environment on board the vessel. He added that prior to his last employment, he underwent and passed his PEME without any indication that he was suffering from any heart disease.

 

Respondents, Responden ts, howev however, er, insisted insisted that petition petitioner er was repatria repatriated ted not for medical medical reasons reasons but  because his contract has already ended. The Labor Arbiter rendered a Decision in favor of petitioner. According to the Labor Arbiter, petitioner's job as able bodied seaman contributed even in a small degree to the development of  his cardiovascular disease. It was also ruled that the fact that petitioner signed-off from MT North Star due to "completion of contract" does not bar recovery of his disability claims considering that  he aptly established reasonable causation of his cardiovascular disease and his work as able bodied seaman. The NLRC afirmed the Decision of the Labor Arbiter. The CA reversed and set aside the decision of the NLRC. The CA ruled that petitioner's bare allegations do not sufice to discharge the required quantum of proof of compensability. It added that nowhere in the records can it ind any documentation or medical report that petitioner contracted such heart illness aboard M/T North Star.

ISSUE:

Whether or not petitioner's illness is compensable. (YES)

RULING:

For disability to be compensable under Section 20 (B) (4) of the POEA-SEC, POEA-SEC, two elements must  concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract. The POEA-SEC POEA-SEC deines  deines a work-related injury as "injury(ies) resulting in disability or death arising out of and in the course of employment," and a work-related illness as "any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of this Contract  with the conditions set therein satisied." For illnesses mentioned under Section the POEA-SEC creates POEA-SEC  creates a disputable presumption in favor of thenot seafarer that these illnesses are32, workrelated. Notwithstanding the presumption, the claimant-seafarer must still prove by substantial evidence that his work conditions caused or at least increased the risk of contracting the disease. In order to establish compensability of a non-occupational disease, reasonable proof of workconnecti conn ection on is suficien suficientt — direct direct causal causal relation relation is not required. required. Thus, Thus, probabil probability, ity, not the ultimate degree of certainty, is the test of proof in compensation proceedings. The indings indings of the Labor Arbite Arbiterr and the NLRC NLRC clear clearly ly sho show w how petiti petitione onerr acquir acquired ed or developed his illness during the term of his contract. The CA reversed the NLRC decision by ruling that nothing in the records, documentation or medical report, show that petitioner contracted his illness aboard M/T North Star, however, despite such, the fact that petitioner was able to pass his PEME without without any inding inding that he had a pre-exis pre-existing ting heart ailment ailment beore  boarding the vessel and later on inding, after the termination of his contract that he has acquired the said heart  ailment, one can conclude that such illness developed while he was on board the same vessel. The

 

work assigned to the petitioner would all lead to the conclusion that the work of petitioner as Able Seaman caused or contributed even to a small degree to the development or aggravation of  complainant's heart disease. In determining whether a disease is compensable, it is enough that  there exists a reasonable work connection. It is suficient that the hypothesis on which the workmen's claim is based is probable since probability, not certainty is the touchstone. PRINCESS TALENT CENTER PRODUCTION, INC., AND/OR LUCHI SINGH MOLDES, Petitioners Petitioners,, -versus- DESIREE T. MASAGCA, Respondent .

G.R. No. 191310, FIRST DIVISION, April 11, 2018, LEONARDO-DE CASTRO, J .

Dismissal from employment has two facets: irst, the legality of the act of dismissal, which constitutes substanti subs tantive ve due process; and, second, second, the legality legality of the manner manner of dismissal dismissal,, which which constitu constitutes tes  procedural due process. The burden of proof rests upon the employer to show that the disciplinary  action was made for lawful cause or that the termination of employment was valid. Unsubstantiated  suspic sus picion ions, s, ac accu cusat sation ions, s, and concl conclusi usion onss of the employ employer er do not not provid providee legal legal jus justi tiica icatio tion n fo for  r  dismissing the employee. When in doubt, the case should be resolved in favor of labor pursuant to the social justice policy of our labor laws and the 1987 Constitution. To reiterate, respondent could only be dismissed for just and authorized cause, and after affording her  notice and hearing prior to her termination. SAENCO had no valid cause to terminate respondent's employment. Neither did SAENCO serve two written notices upon respondent informing her of her  alleged club policy violations and of her dismissal from employment, nor afforded her a hearing to defend herself. The lack of valid cause, together with the failure of SAENCO to comply with the twinnotice and hearing requirements, underscored the illegality surrounding respondent’ respondent’ss dismissal. FACTS:

Sometime in November 2002, respondent auditioned for a singing contest at ABC-Channel 5 in Novaliches, Quezon City. Respondent went to the ofice of petitioner PTCPI, a domestic corporation engaged in the business of training and development of actors, singers, dancers, and musicians in the movie and entertainment entertainment industry. At the ofice, respondent met petitioner Moldes, President of  petitioner PTCPI, who persuaded respondent to apply for a job as a singer/entertainer in South Korea. A Model Employment Employment Contract Contract for Filipino Filipino Overseas Perfor Performing ming Artists Artists (OPAS) To Korea Korea (Employment Contract) was executed on February 3, 2003 between respondent and petitioner PTCPI as the Philippine agent of SAENCO, the Korean principal/promot principal/promoter. er. Respondent left for South Korea on September 6, 2003 and worked there as a singer for nine months mon ths,, un until til her repatr repatriat iation ion to the Philip Philippin pines es somet sometime ime in June June 2004. 2004. Bel Believ ieving ing that that the

 

termination of her contract was unlawful and premature, respondent iled a complaint against  petitioners and SAENCO with the NLRC. Respondent alleged that she was made to sign two Employment Contracts but she was not given the chance to read any of them despite her requests. Respondent had to rely on petitioner Moldes' representations that: (a) her visa was valid for one year with an option to renew; (b) SAENCO would be her employer; (c) she would be singing in a group with four other Filipinas at Seaman's Seven Pub at 82-8 Okkyo-Dong, Jung-Gu, Ulsan, South Korea; (d) her Employment Contract had a minimum term of one year, which was extendible for two years; and (e) she would be paid a monthly salary of US$400.00, less US$100.00 as monthly commission of petitioners. Petitioner Moldes also made respondent sign several spurious loan documents by threatening the latter that  she would not be deployed if she refused to do so. For nine nine months months,, respon responden dentt worked worked at Se Seama aman's n's Seven Seven Pub in Ulsan, Ulsan, South South Korea Korea withou without  t  receiving any salary from SAENCO. Respondent subsisted on the 20% commission that she received for every lady's drink the customers purchased for her. On June 24, 2004, Park Sun Na (Park), President of SAENCO, 9 went to the club where respondent  worked, dragged respondent outside, and brought respondent to his ofice in Seoul where he tried to intimidate respondent into apologizing to petitioner Moldes with regard to respondent’s refusal to pay the loan she allegedly obtained from the petitioner. However, respondent did not relent. Subseque Subs equently ntly,, Park turned responde respondent nt over to the South South Korean Korean immigrat immigration ion authorit authorities ies for deportation on the ground of overstaying in South Korea with an expired visa. It was only at that  moment when respondent found out that petitioner Moldes did not renew her visa. Responden Respon dentt iled iled th the e compla complaint int agains againstt petit petition ioners ers and SAENC SAENCO O prayin praying g that that a decisi decision on be rendered declaring them guilty of illegal dismissal and ordering them to pay her unpaid salaries for one year, year, inclu inclusiv sive e of her sa salar laries ies for th the e unexp unexpire ired d portio portion n of her Emp Employ loymen mentt Contra Contract, ct, backwages, moral and exemplary damages, and attorney's fees. The Petitioner on the other hand averred that it dismissed the Respondent on the basis of alleged violations of club policies including her provocative and immoral conduct. The Labor Labor Arbiter Arbiter dismissed dismissed Responde Respondent’s nt’s complain complaint. t. Responde Respondent nt appealed appealed the Labor Labor Arbiter's Arbiter's Decision before the NLRC. The NLRC initially ruled in respondent's favor but later on reversed itself  and found that the Respondent failed to prove her allegations.Respondent sought remedy from the Court of Appeals by iling a Petition for Certiorari, alleging that the NLRC acted with grave abuse of  discretion amounting to excess or lack of jurisdiction in reinstating the Labor Arbiter's Decision. The appellate court then held that respondent was dismissed from employment without just cause and without procedural due process, and that petitioners and SAENCO were solidarily liable to pay respondent her unpaid salaries for one year and attorney's fees. ISSUE:

 

1. Whether Respondent was illegally dismissed. (YES) 2. Whether Petitioner Petitioner is liable for the money claims of respondent. (YES) RULING:

1. Per the plain language of respondent's Employment Contract with SAENCO, her employment would be enforced for the period of six months commencing on the date respondent departed from the Philippin Phili ppines, es, and extendible extendible by another another six months months by mutual mutual agreemen agreementt of the parties. parties. Since Since respon res ponden dentt left left for South South Korea Korea on Septem Septembe berr 6, 2003, 2003, the the origin original al six six-mo -mont nth h period period of her Employment Contract ended on March 5, 2004. Although respondent's employment with SAENCO was good for six months only (i.e., September 6, 2003 to March 5, 2004) as stated in the Employment Contract, the Court is convinced that it was extended under the same terms and conditions for another six months (i.e., March 6, 2004 to September 5, 2004). Respondent and petitioners submitted evidence establishing that respondent  continued to work for SAENCO in Ulsan, South Korea even after the original six-month period under respondent's Employment Contract expired on March 5, 2004. Ideally, the extension of  respondent's employment should have also been reduced into writing and submitted/reported to the appropriate Philippine labor authorities. Nonetheless, even in the absence of a written contract  evidencing the six-month extension of respondent's employment, the same is practically admitted by petit petition ioners ers,, subje subject ct only only to the defense defense that that there there is no proof proof of th their eir knowledg knowledge e of or participation in said extension and so they cannot be held liable for the events that transpired between respondent and SAENCO during the extension period. Petitioners presented nine vouchers to prove that respondent received her salaries from SAENCO for nine months. Petitioners also did not deny that petitioner Moldes, President of petitioner PTCPI, went to confront respondent about  the latter's outstanding loan at the Seaman's Seven Club in Ulsan, South Korea in June 2004, thus, revealing that petitioners were aware that respondent was still working for SAENCO up to that  time. Hence, respo Hence, responde ndent nt had be been en workin working g for SAENC SAENCO O in Ulsan, Ulsan, South South Korea, Korea, pursua pursuant nt to her Employment Contract, extended for another six-month period or until September 5, 2004, when she was dismissed and repatriated repatriated to the Philippines by SAENCO in June 2004. Dismissal Dismis sal from from employ employmen mentt has two facets facets:: ir irst st,, the the legali legality ty of the the act of dismis dismissal sal,, whi which ch constitutes substantive due process; and, second, the legality of the manner of dismissal, which constitutes procedural due process. The burden of proof rests upon the employer to show that the disciplinary action was made for lawful cause or that the termination of employment was valid. Unsubstantiated suspicions, accusations, and conclusions of the employer do not provide legal justiication for dismissing the employee. When in doubt, the case should be resolved in favor of  labor pursuant to the social justice policy of our labor laws and the 1987 Constitution.

 

As previously discussed herein, SAENCO extended respondent's Employment Contract for another six months even after the latter's work visa already expired. Even though it is true that respondent  could not legitimately continue to work in South Korea without a work visa, petitioners cannot  invoke said reason alone to justify the premature termination of respondent's extended employment. Neither petitioners nor SAENCO can feign ignorance of the expiration of respondent's work visa at the same time as her original six-month employment period as they were the ones who facilitated and processed the requirements for respondent's employment in South Korea. Petitioners and SAENCO should also have been responsible for securing respondent's work visa for the extended period of her employment. Petitioners and SAENCO should not be allowed to escape liability for a wrong they themselves participated in or were responsible for. To reiterate, respondent could only be dismissed for just and authorized cause, and after affording her notice notice and hearing hearing pri prior or to her termin terminati ation on.. SAENCO SAENCO had no valid valid cau cause se to termin terminate ate respon res ponden dent's t's employ employmen ment. t. Ne Neith ither er did SAENC SAENCO O serve serve tw two o writt written en notice noticess upon upon respo responde ndent  nt  informing her of her alleged club policy violations and of her dismissal from employment, nor afforded her a hearing to defend herself. The lack of valid cause, together with the failure of  SAENCO SAEN CO to comply comply with the twin-not twin-notice ice and hearing hearing requirem requirements ents,, undersco underscored red the illegality illegality surrounding respondent’s dismissal. 2.

The law is plain and clear, the joint and several liability of the principal/employer, recruitment/placement agency, and the corporate oficers of the latter, for the money claims and damages of an overseas Filipino worker is absolute and without qualiication. It is intended to give utmost protection to the overseas Filipino worker, who may not have the resources to pursue her money mon ey claims claims and and damage damagess agains againstt the foreig foreign n princ principa ipal/e l/empl mploye oyerr in anothe anotherr count country. ry. The The overseas Filipino worker is given the right to seek recourse against the only link in the country to the foreign principal/employer, i.e., the recruitment/placement agency and its corporate oficers. As a result, the liability of SAENCO, as principal/employer, and petitioner PTCPI, as recruitm recr uitment/ ent/place placement ment agency, agency, for the monetary monetary awards awards in favor favor of responden respondent, t, an illegally illegally dismissed employee, dismissed employee, is joint joint and several. In turn, turn, since petitione petitionerr PTCPI PTCPI is a juridical juridical entity, entity, petitioner Moldes, as its corporate oficer, is herself jointly and solidarily liable with petitioner PTCPI for respondent’s monetary awards, regardless of whether she acted with malice or bad faith in dealing with respondent. respondent. SCANMAR MARITIME SERVICES, INC. and CROWN SHIPMANAGEMENT, INC., Petitioners Petitioners,, versus- CELESTINO M. HERNANDEZ, JR., Respondent .

G.R. No. 211187, FIRST DIVISION, April 16, 2018, DEL CASTILLO, J . In this case, respondent iled his complaint for total and permanent disability beneits while he was still considered to be temporarily and totally disabled; while the company-designated physician was still still in the proces processs of assess assessing ing his condi conditio tion n an and d determ determini ining ng whethe whetherr he was was still still cap capabl ablee of   performing his usual sea duties; and when the 240-day period had not yet lapsed. From the foregoing,

 

it is evident that respondent's complaint was prematurely iled. His cause of action for total and   permanent disability disability beneits had not not yet accrued. Moreover, respondent's failure to comply with the procedure prescribed by the POEA-SEC, which is the law between the parties, provided a suficient ground for the denial of his claim for total and   permanent disability disability beneits. Section 20B(3) of the POEA-SEC provides that it is the company-designated company-designated physician who is entrusted  with the task of assessing a seafarer's disability. The provision also provides for a procedure to contest  the company-designated physician's indings. Respondent, however, failed to comply with the  procedure when he iled his complaint complaint on July 20, 2010 without a d deinite einite assessment yet being rendered by the company-designated physician. FACTS:

On July 2, 2009, petitioner for and in behalf of its foreign principal, petitioner Crown Shipmanagement, Inc., entered into a Contract of Employment with respondent for a period of nine months as Able Seaman for the vessel Timberland. Respondent underwent the pre-employment  medical examination (PEME), where he was declared it for work. He was deployed on August 3, 2009 and boarded the vessel the next day. During the course of his employment, respondent experienced pain in his inguinal area and pelvic bone. The pain continued for weeks radiating to his right scrotum and right medial thigh. He informed the Captain of the vessel and was brought to a hospital in Sweden on February 3, 2010 where wher e he was found unit unit to resume resume normal normal duties. duties. Consequently Consequently,, responden respondentt was medically medically repatriated repatriate d to the Philippines on February 6, 2010. On February 8, 2010, respondent was referred to the company-designated physician at  Metropolitan Medical Center for medical evaluation. He was diagnosed to have Epididymitis, right, and was recommended to undergo Varicocoelectomy. The procedure was a success Varicocoele,, left and Varicocoele and responden respondentt was immediat immediately ely discharge discharged d the following following day. Thereaft Thereafter, er, he cont continuo inuously usly reported to Dr. Gatchalian for medical treatment and evaluation. Despite continui Despite continuing ng medical medical treatmen treatmentt and evaluatio evaluation n with the companycompany-desig designate nated d physician physician,, respondent iled on July 20, 2010 a complaint with the NLRC for permanent disability beneits, damages, and attorney's fees against petitioners. On August 12, 2010, respondent consulted his own physician, Dr. Antonio C. Pascual (Dr. Pascual), a Cardiologist, who diagnosed him with Essential Hypertension, Stage 2, Epididymitis, right, Varicocoele, left, S/P Varicocoelectomy and certiied him medically unit to work as a seaman. Meanwhile, on August 24, 2010, Dr. Gatchalian pronounced respondent it to resume sea duties. Petitioners, on the other hand, disclaimed respondent's entitlement to any disability compensation or beneit since his illness was not an occupational disease listed as compensable under the POEA-

 

SECand was not considere SECand considered d work-rela work-related. ted. Petitione Petitioners rs maintain maintained ed that responden respondentt was never never declared unit to work nor was he rendered permanently, totally or partially, disabled, averring that  Dr. Gatchalian Gatchalian,, the urol urologica ogicall surgeon surgeon who closely closely monitore monitored d responde respondent's nt's condition condition,, already already declared him it to resume sea duties. Petitioners insisted that Dr. Gatchalian's assessment should prevail over that rendered by Dr. Pascual, who examined respondent only once. Further, according to petitioners, petitioners, respondent respondent's 's failure failure to consult consult a third third doctor doctor who is tasked tasked to settle the inconsistencies in the medical assessments in accordance with the provisions of the POEA-SEC was fatal to his cause. The Labor Arbiter awarded respondent total and permanent disability compensation.Petitioners appealed appe aled to the NLRC which which dismissed dismissed the same and afirmed afirmed the Labor Labor Arbiter. Arbiter. The Petitione Petitionerr sought recourse to the Court of Appeals which likewise dismissed the same and afirmed the order. ISSUE:

Whether Respondent is entitled to permanent disability beneits. (NO) RULING:

We ind serious error in both the rulings of the NLRC and CA that respondent's disability became permanent and total on the ground that the certiication of the company-designated physician was iss issued ued more more than than 120 days days after after respon responden dent's t's medica medicall rep repatr atriat iation ion.. As cor correc rectly tly argued argued by petiti pet ition oners ers,, the the 120-da 120-day y rule rule has alread already y been been clari clariied ied in the case case of Verg Vergara ara v. Ham Hammon monia ia Maritime Services, Inc., where it was declared that the 120-day rule cannot be simply applied as a general rule for all cases in all contexts. In Vergara, this Court has ruled that the aforequoted provisions should be read in harmony with each other, thus: (a) the 120 days provided under Section 20B(3) of the POEA-SEC is the period given to the employer to determine itness to work and when the seafarer is deemed to be in a state of total total and temp tempora orary ry disabi disabilit lity; y; (b) the 120 days days of total total and tempor temporary ary disabi disabilit lity y may be extended up to a maximum of 240 days should the seafarer require further medical treatment; and (c) a total total and tempor temporary ary disabi disabilit lity y become becomess perman permanen entt when when so declar declared ed by the the compan companyydesignated physician within 120 or 240 days, as the case may be, or upon the expiration of the said periods without a declaration of either itness to work or disability assessment and the seafarer is still unable to resume his regular seafaring duties.

Upon respondent's repatriation on February 6, 2010, he received extensive medical attention from the company-designated physicians. He was endorsed to a urological surgeon. Dr. Gatchalian, who recom rec ommen mended ded and perform performed ed surger surgery y on him on March March 26, 2010 2010 to addre address ss and treat his varicocoele. After surgery, his condition was continually monitored as he still complained of scrotal and groin pains. He thereafter underwent Inguinoscrotal Ultrasound on May 28, 2010 and July 16, 2010. He was subjected to further physical and laboratory exams and was recommended by Dr. Gatchalian to undergo CT Sonogram to further evaluate his condition and recovery, as shown in a

 

Medicall Report Medica Report dated dated August August 19, 2010. 2010. On August August 24, 2010 2010 or 197 days days from from repatr repatriat iation ion,, respondent was cleared to go back to work. In this case, respondent iled his complaint for total and permanent disability beneits while he was still considered to be temporarily and totally disabled; while the company-designated physician was still in the process of assessing his condition and determining whether he was still capable of  performing his usual sea duties; and when the 240-day period had not yet lapsed. From the foregoing, it is evident that respondent's complaint was prematurely iled. His cause of action for total and permanent disability beneits had not yet accrued. Moreover, respondent's failure to comply with the procedure prescribed by the POEA-SEC, which is the law between the parties, provided a suficient ground for the denial of his claim for total and permanent disability beneits. Section 20B(3) of the POEA-SEC provides that it is the company-designated physician who is entruste entr usted d with the task of assessing assessing a seafarer seafarer's 's disabilit disability. y. The provision provision also provides provides for a procedure to contest the company-designated physician's indings. Respondent, however, failed to comply with the procedure when he iled his complaint on July 20, 2010 without a deinite assessment yet being rendered by the company-designated physician. Worse, he sought an opinion from from Dr. Pascual, Pascual, an indep indepen enden dentt physic physician ian,, on August August 12, 2010 despit despite e the absenc absence e of an assessment by the company-design company-designated ated physician. The medical certiicate of Dr. Pascual, nevertheless, was of no use and will not give respondent that  cause of action that he lacked at the time he iled his complaint. Indeed, a seafarer has the right to seek the opinion of other doctors under Section 20-B(3) of the POEA-SEC but this is on the presumption that the company-designated physician had already issued a certiication as to his itness or disability and he inds this disagreeable. The Court is thus unconvinced to put weight on the indings indings of Dr. Pascual Pascual given given th that at respo responde ndent nt has brea breache ched d his duty to comply comply with the procedure prescribed by the POEA-SEC. LOADSTAR INTERNATIONAL SHIPPING, INC., Petitioner  –versus –versus- ERNESTO AWITEN YAMSON, SUBSTITUTED BY HIS HEIRS GEORGIA M. YAMSON AND THEIR CHILDREN, NAMELY: JENNIE  ANN MEDINA YAMSON, KIMBERLY SHEEN SHEEN MEDINA YAMSON, JOSHUA JOSHUA MEDINA YAMSON AND  ANGEL LOUISE MEDINA YAMSON, YAMSON, Respondent.  Respondent.

G.R. No. 228470, SECOND DIVISION, April 23, 2018, Peralta, J. For disability to be compensable under the POEA-SEC, two elements must concur: (1) the injury or  illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract. contract. In Andrada

v.

Agemar

Manning

Agency,

Inc.,

et

al.,

this

Court

held

that:

“ In case case of disag disagree reemen mentt betwe between en the in indin dings gs of the comp company any-de -desig signat nated ed phy physic sician ian and the

 

seafarer's doctor of choice, the employer and the seaman may agree jointly to refer the latter to a third doctor whose decision shall be inal and binding on them”

In the present case, there is no evidence to show that the parties jointly sought the opinion of a third   physician in the determination and assessment of Ernesto's disability or the absence of it. Hence, the credibility of the indings of their respective doctors was properly evaluated by the labor tribunals tribunals ( LA and NLRC) as well as the CA on the basis of their inherent merits. After a review of the records at hand, the Court inds that there is no cogent reason to depart from the indings of the LA and the NLRC that  Ernesto failed to establish that his subject illnesses were either work-related or work aggravated. FACTS:

Petitioner is a domestic corporation engaged in the shipping business. On May 7, 2012, petitioner employed the services of herein respondent Ernesto Yamson ( Ernesto) as Third Mate aboard the vessel ves sel "M/V Foxhou Foxhound nd"" for a period period of twelve twelve (12) months months,, wit with h a ba basic sic monthly monthly salary salary of  US$582.00, as evidenced by his Employment Contract. On May 9, 2012 Ernesto commenced his employment on board "M/V Foxhound". His contract was subsequently extended. On November 19, 2013, Ernesto, while performing his regular tasks on an extremely hot day, felt  dizzy. In the evening of the same day, Ernesto started to feel the left side of his body getting numb. Ernesto was, thus, brought to the Paciic International Hospital in Papua New Guinea where he was conined and was diagnosed to have suffered from cerebrovascular disease: "left cerebellar infarct" and hypertension, Stage 2. The attending physician ordered him to cease from working for a period of two (2) weeks. Subsequently, on December 1, 2013, Ernesto was repatriated to the Philippines. Upon arrival in Manila, he was immediately brought to the Philippine General Hospital where he underwent medical check-up. Finding that he was in a stable condition, the examining doctor sent  him home as he was classiied as an "out-patient." Ernesto was admitted at the Manila Doctor's Hospital where he underwent CT scans of the head and heart.  In his letter addressed to petitioner, the company-designated physician reported that the result of  the CT scan conducted on Ernesto' showed, among others, that he has an "old infarct in the left  superior aspect of the left cerebellum." On December 13, 2013, Ernesto was discharged from the hospital. Subsequently, he consulted another physician who diagnosed him to be suffering from Hypertensive Hypertensi ve Atherosclerotic Cardiovascular Disease and Cerebrovascular Cerebrovascular Disease and was advised to cease from working as a seaman due to his neurologic deicits. On the basis of the indings of his own doctor, Ernesto iled a complaint praying that he be awarded the follow following ing:: US$60, US$60,000 000.00 .00 as total total and and perma permanen nentt disab disabili ility ty benei beneits; ts; sickn sickness ess allowa allowance nce equiva equ ivalen lentt to 120 days; days; medica medicall and tr trans anspor portat tation ion expe expense nsess in th the e amoun amountt of P62,51 P62,514.6 4.64; 4; P100,0 P10 0,000. 00.00 00 as moral moral damage damages; s; P100,0 P100,000. 00.00 00 as exemp exemplar lary y damage damages; s; and, and, 10% of the the to total tal judgment award as attorney's fees.

 

The Labor Arbiter ruled in favour of the petitioner, while the NLRC partly granted Ernesto’s petition. The Court of Appeals ordered Loadstar International Shipping Inc. to pay Ernesto total and permanent disability beneits in the amount of US$60,000.00 plus ten percent (10%) thereof as attorney's fees. Pending the resolution of the case in the Supreme Court Ernesto died and is substituted by his heirs. ISSUE:

Whether Ernesto is entitled to disability compensation by reason of such illnesses. (NO) RULING:

It is settled that while the seafarer and his employer are governed by their mutual agreement, the POEA Rules and Regulations require that the POEA-Standard Employment Contract ( POEA-SEC ) be integrat inte grated ed with every every seafarer seafarer's 's contract contract.. In the instant instant case, case, since since petition petitioner's er's employmen employment  t  contract was executed on May 7, 2012, it is governed by the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships, which was amended in 2010, pertinent pertinent portions of which read as follows:

“3. In addition to the above obligation of the employer to provide medical attention, the seafarer shall also receive sickness allowance from his employer in an amount equivalent to his basic wage computed from the time he signed off until he is declared it to work or the degree of disability has been assessed by the company-designated physician. The period within which the seafarer shall be entitled to his sickness allowance shall not exceed 120 days. Payment of the sickness allowance shall be made on a regular basis, but not less than once a month. XXX 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 inal and binding on both parties.”

In Andrada v. Agemar Manning Agency, Inc., et al., thi thiss Cou Court rt held held that: that: “ In case of disagreement between the indings of the company-designated physician and the seafarer's doctor of choice, the employer and the seaman may agree jointly to refer the latter to a third doctor whose decision shall be inal and binding on them”

 

In the present case, there is no evidence to show that the parties jointly sought the opinion of a third physician in the determination and assessment of Ernesto's disability or the absence of it. Hence, the credibility of the indings of their respective doctors was properly evaluated by the labor tribunals (LA and NLRC ) as well as the CA on the basis of their inherent merits.

After a review of the records at hand, the Court inds that there is no cogent reason to depart from the indings of the LA and the NLRC that Ernesto failed to establish that his subject illnesses were either work-related or work aggravated.

For disability to be compensable under the above POEA-SEC, two elements must concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract. To be entitled to compensation and beneits under the governing POEA-SEC, it is not suficient to establish that the seafarer's illness or injury has rendered him permanently or partially disabled; it must also be shown that there is a causal connection between the seafarer's illness or injury and the work for which he had been contracted. The burden is placed upon the claimant to present substantial evidence that his work conditions caused or at least increased the risk of contracting contracting the disease. In this case, however, Ernesto was unable to present substantial evidence to show that his work conditions caused, or at the least  increased the risk of contracting his illness. Neither was he able to prove that his illness was preexisting and that it was aggravated by the nature of his employment.

 ARNEL T. GERE, Petitioner , v. ANGLO-EASTERN MANAGEMENT PHILS., INC. AND/O AND/OR R  ANGLO-EASTERN CREW MANAGEMENT  ANGLO-EASTERN CREW MANAGEMENT MANAGEMENT (ASIA), LTD., Respondent s. s. G.R. No. 226656 & 226713, SECOND DIVISION, April 23, 2018, REYES, JR., J.

Only when the seafarer is duly and properly informed of the medical assessment by the companydesignated physician could he determine whether or not he/she agrees with the same; and if not, only  then the n could could he/she he/she comm commenc encee the proces processs of consu consulti lting ng his person personal al physic physician ian.. If co conl nlict icting ing assessments arise, only then is there a need to refer the matter to a neutral third party physician. Without the proper notice, Gere was not given the opportunity to evaluate his medical assessment. In this instance, the mandatory referral to a neutral third doctor could not have been applicable.

FACTS:

Gere Ger e is a Filip Filipino ino seafar seafarer er who si signe gned d a Contr Contract act of Employ Employmen mentt with with AngloAnglo-Eas Easter tern n Crew Crew Manage Man agemen mentt (Asia) (Asia),, Ltd., Ltd., throug through h its mannin manning g agent agent in the Philip Philippin pines, es, AngloAnglo-Eas Easter tern n Crew Crew

 

Management Phils., Inc. Gere was accepted as an able seaman aboard the vessel "MV JENNY N" for a duration of nine (9) months.

While performing his duties on board the vessel, Gere accidentally stepped on a bulwark support  causing him to lose his balance and to eventually land heavily on his right arm. Due to this, Gere was repatriated to the Philippines.

According to the respondents, the company-designated physician issued on April 28, 2014 an interim disability grading of "Grade 10 - loss of grasping power" and on August 12, 2014, a inal disability grading of "Grade 10 - ankylosed wrist in normal position."

In contrast, however, Gere remained irm in asserting that the respondents have not informed him of these medical assessments. According to him, more than 240 days of treatment have already lapsed without the disability grading from the company-designated physician, and so, he consulted his personal physician who opined that Gere suffers from "partial permanent disability with Grade 8 impediment based on the POEA contract."

On the basis of the foregoing, Gere asked the respondents to pay him disability beneits based on the CBA between AMOSUP and the respondents. Since the latter denied the claim, Gere iled a Notice to Arbitrate before the Ofice of the Panel of Voluntary Arbitrators of the NCMB. The panel rendered its Decision in favor of Gere. Aggrieved, the respondents appealed before the CA, which later on reduced the total and permanent disability beneit awarded to Gere and deleted the award of sickness allowance for lack of merit. Hence, the instant petitions.

ISSUES: (1) Whet Whether her or not the companycompany-desig designate nated d physician physician was able to issue a inal inal disability disability

grading of Gere's injury within 240 days from the moment of his medical attention? (NO) (2) Whether or not the referral to a third doctor is mandatory in the event of disagreement  between the company-designated physician and the seafarer's personal physician? (NO) (3) Whether or not such injury is compensable under Philippine law? (YES)

RULING: (1) As it now stands, the rules to be followed are:

1   The company-designated company-designated physician must issue a inal inal medical assessment assessment on the seafarer's seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;

 

 2   If the company-designated company-designated physician ffails ails to give his assessment assessment within the period of 120 days, without any justiiable reason, then the seafarer's disability becomes permanent and total; 3   If the company-designated company-designated physician ffails ails to give his assessment assessment within the period of 120 days with a suficient justiication (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician

has suficient justiication to extend the period; and company-designated physician still fails fails to give his assessment within the ex extended tended 4   If the company-designated period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justiication. justiication.

In follow following ing the forego foregoing ing guidel guidelin ines, es, it must must be emphas emphasize ized d that that the compan company-d y-desi esigna gnated ted physician must not only "issue" a inal medical assessment of the seafarer's medical condition. He must also "give" his assessment to the seafarer concerned. That is to say that the seafarer must be fully and properly properly informed informed of his medical condition. condition. In this regard, the company-designated physician is mandated to issue a medical certificate, which should be personally received by the seaarer seaarer,, or, i not practica practicable ble,, sen sentt to him/he him/her r by any other means means sancti sanctione oned d by present rules. 

This elaboration acquires greater signiicance in light of Section 20(A)(3) of the POEA Contract, which states that in the event that a seafarer suffers a worker related/aggravated illness or an injury during the course of his/her employment, it is the company-designated physician's medical assessment that shall control the determination of the seafarer's disability grading. Should the seafarer's personal physician disagree, then the matter shall be referred to a neutral third party physician, who shall then issue a inal and binding assessment.

The Court further clariied this rule by categorically saying that the referral to a third doctor is mandatory. In this light, only when the seafarer is duly and properly informed of the medical assessmen asse ssmentt by the company-desi company-designat gnated ed physician physician could he determin determine e whether whether or not he/she he/she agrees with the same; and if not, only then could he/she commence the process of consulting his personal physician. If conlicting assessments assessments arise, only then is there a need to refer the matter to a neutral third party physician.

In the present case, the Court inds that the evidence presented by the respondents to prove that  they have actually given Gere a copy of the medical assessment fail to convince. First, both interim and inal disabilit disability y ratings ratings were mere suggested suggested disability disability ratings. ratings. Indeed, both written written and addressed, not to Gere, but to the company-designated physician. Second, all that the document  showed was that Gere was informed of the disability grading only after the iling of the Notice to Arbitrate which, coincidentally, coincidentally, was already 250 days after his medical repatriation. repatriation.

 

(2)  Withou Withoutt the proper proper notice notice,, Gere Gere was not not given given the opportun opportunity ity to evalua evaluate te his medical medical

assessment. In this instance, the mandatory referral to a neutral third doctor could not have been applicable. Indeed, rom the perspective o Gere, there was absolutely no assessment by the company-designa company-de signated ted physician physician to contest. contest. As such, there was no impetus impetus to seek a neutral neutral third doctor.  Therefore, for the respondents' failure to inform Gere of his medical assessment 

within the prescribed period, Gere's disability grading is, by operation of law, total and permanent. (3) The provisions of the CBA are clear: (1) only when the disability grading is at 50% or more, or

(2) only when the company-designated physician certiies that the seafarer is medically unit to continue work-even if the disability grading is less than 50%-could the seafarer be entitled to total and permanent disability beneits in accordance with the medical unitness clause. In the present  case, cas e, even even Gere's Gere's person personal al physi physicia cian n assess assessed ed him only only at Grade Grade 8 disab disabili ility ty gradin grading, g, which which translates to only 33.59%.

Notwithstanding this, CA is correct in applying the provisions of the POEA contract rather than the provisions of the CBA because neither the company doctor nor his own doctor assessed his disability at 50% or more. Moreover, while the permanent medical unitness clause provides that  any seafarer assessed at less than 50% disability is entitled to full compensation, the same clause mandates that the certification must be made by the company doctor which is not the situation in the present case.

SEACREST MARITIME MANAGEMENT, INC. AND/OR HERNING SHIPPING ASIA PTE. LTD., Petitioners, v. ALMA  ALMA Q. RODEROS, AS WIDOW AND LEGAL HEIR OF F FRANCISCO RANCISCO RODEROS, Respondent .

G.R. No. 230473, SECOND DIVISION, April 23, 2018, REYES, JR., J.

Work-related illnesses are determined by the following rules:

First, there is work relation if the illness leads to disability or death as a result of an occupational  disease listed under Section 32-A of the POEA SEC with the conditions set therein satisied;

Second, for illnesses not mentioned under Section 32, the POEA-SEC creates a disputable presumption in fa favo vorr of the the se seaf afar arer er that that thes thesee il illn lnes esse sess are are work work-r -rel elat ated ed.. Howe Howeve ver, r, th this is pres presum umpt ptio ion n notwithsta notw ithstandin nding, g, the Court Court has held that the claiman claimant-seaf t-seafarer arer must must still prove by substanti substantial  al  evidence that his/her work conditions caused or, at least, increased the risk of contracting the disease.

 

In order order to estab establis lish h compen compensab sabili ility ty of a non-oc non-occu cupat pation ional al diseas disease, e, reason reasonabl ablee pro proof of of workworkconnection-but connection -but not direct causal relation-is required.

FACTS:

Fr Franc ancisc isco o Ro Roder deros os is a Filip Filipino ino seafar seafarer er who signed signed a Contr Contract act of Employ Employmen mentt with with Heming Heming Shipping Asia Pte. Ltd., through its manning agent in the Philippines, Seacrest Maritime Management, Inc. He was accepted on board the vessel "MT ANNELISE THERESA" as a Chief Cook  for six (6) months.

During his engagement in the vessel, Roderos experienced constipation and abdominal pains. The symptoms continued until September of the same year. While on the Port of Rostock in Germany, Roderos was brought to the Hospital where he was found to have blood in his stool. Few days thereafter, he was repatriated back to the Philippines.

Upon Roderos's arrival, he was diagnosed with "Colon Adenocarcinoma" in a stage four (4) level. Roderos underwent chemotherapy sessions under the care of the company designated physician, Dr. Alegre. Thereafter, Dr. Alegre issued a Progress Report, where he reported that Roderos's illness was "deemed not work related."

On the basis of the foregoing report, Roderos's chemotherapy treatments were discontinued. Thus, Roderos sought for the collection of disability beneits. Unfortunately, the parties did not reach any settlement. Hence, Roderos iled a complaint before the LA for disability beneits, illness allowance, attorney's fees, and medical expenses.

LA rendered a Decision against Roderos on the following grounds: (1) Stage 4 Colon Cancer is not  among the occupational diseases listed in the Philippine Overseas Employment Administration Standard Employment Contract (POEA-SEC) and (2) the company designated physician declared that the illness is not work-related.

Aggrieved, Roderos elevated the case to the NLRC. While the case was pending, Roderos died. As a result, Roderos's widow and legal heir, iled for a motion for substitution, which was granted by the NLRC.

 

NLRC afirmed the LA’s LA’s decision. The case was elevated to the CA via a Petition for Certiorari under Rule 65 of the Rules of Court. The CA held that Roderos's Roderos's illness was work-related, or at tthe he very least, work aggravated due to the dietary factors attendant to his work on board the vessel. Hence, this present petition.

ISSUE:

Whether or not Roderos's illness was work-related, and consequently, whether or not he was entitled to disability and death beneits? (NO)

RULING:

Roderos's illness, Cancer of the Large Bowel (Colon), is not an occupational disease listed in Section 32 of the POEA-SEC, and the respondent failed to discharge the burden of providing substantial evidence of the causal connection between the work done by Roderos aboard the vessel and his diagnosed illness.

In Jebsens Maritime, Inc, Sea Chefs. Ltd. And Enrique M. Aboitiz vs. Florvin G. Rapiz , the Court  Court  reiterated its pronouncement that the POEA-SEC is the law between the parties, and its provisions bind both of them.To determine whether an injury or illness is compensable, Section 20(A) of the contract requires the concurrence of two elements: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract. contract. Work-related illnesses are determined by the following rules:

First, there is work relation if the illness leads to disability or death as a result of an occupational disease listed under Section 32-A of the POEA SEC with the conditions set therein satisied;

Se Secon cond, d, for illnes illnesses ses not not mentio mentione ned d under under Sectio Section n 32, the the POEA-S POEA-SEC EC create createss a disput disputabl able e presumption in favor of the seafarer that these illnesses are work-related. However, this presumption notwithstanding, the Court has held that the claimant-seafarer must still prove by subst sub stant antial ial eviden evidence ce that that his/he his/herr work work condit condition ionss caused caused or or,, at least, least, incre increase ased d the the ris risk k of  contr con tract acting ing the diseas disease. e. In order order to est establ ablish ish compen compensab sabili ility ty of a non-occ non-occupa upatio tional nal dis diseas ease, e, reasonable proof of work-connection-but work-connection-but not direct causal relation-is required.

Thus, for an occupational disease and the resulting disability or death to be compensable, all the following conditions, as supported by substantial evidence, must be established:

 

1. The seafarer's seafarer's work work must involve the the risk described herein; 2. The disease was contracted contracted as a result of the seafarer's seafarer's exposure exposure to the described described risks; 3. The dise disease ase was contract contracted ed within within a perio period d of expos exposure ure and under such other other factor factorss necessary to contract it; 4. There was no notorious notorious negligence negligence on the the part of the seafarer.

In this case, there is no dispute that Roderos's illness, Cancer of the Large Bowel (Colon), is not  among the occupational diseases listed in the POEA-SEC. In fact, the Court has already stated in Leo Leonis nis Naviga Navigatio tion n Co., Co., Inc. Inc. vs. Villam Villamate ater  r  that that "under "under Se Secti ction on 32-A 32-A of the POEA POEA St Stand andard ard Contract, only two types o cancers are listed as occupational diseases   - (1) Cancer of the epithelial lining of the bladder (papilloma of the bladder); and (2) cancer, epithellematous or ulceration of the skin or of the corneal surface of the eye due to tar, pitch, bitumen, mineral oil or parafin, or compound products or residues of these substances."

This thus leads the discussion into the second rule in determining the work relation of the illness. Respondent's Position Paper asserted that Roderos's food intake and his exposure to dangerous chemicals aboard "MT ANNELISE THERESA" caused his diagnosed illness. It must be emphasized, however, that with regard to Roderos's dietary intake while on board the vessel, no evidence other than these self-serving allegations were presented. There was absolutely no proof of what Roderos supposedly ate during his work that would have aggravated his illness.

In contrast, the petitioners have presented several afidavits of other seafarers who served with Roderos during his last stint aboard the vessel. A reading of these statements would reveal that the vessel was well-provisioned and that there was variety in the kinds and quality of food served.

In addition, that the company-designated physician issued a medical report stating that Roderos's diagnosed illness, Cancer of the Bowel (Colon), is deemed not work-related militates against the respondent's claims. Contrary to the mandatory proceedings identiied by the Court, Roderos did not demand for his re-examination by a third doctor, and instead opted to initiate the instant case. This, as the Court already ruled, is a fatal defect that militates against his claims.

Thus, for the respondent's failure to (1) present substantial evidence that would prove reasonable causation, or at the very least, aggravation of Roderos's work while aboard the petitioners' vessel, and for Roderos's failure to (2) insist on his re-examination of a third doctor that could determine with inality as to whether or not his diagnosed illness was work-related, the Court is constrained to rule for the petitioners.

 

RICKY B. TULABING, Petitioner , v. MST MARINE SERVICES (PHILS.), INC., TSM INTERNATIONAL LTD., AND/OR CAPT. ALFONSO R. DEL CASTILLO , Respondent .

GR No. 202113 , SECOND DIVISION, DIVISION, June 6, 2018, REYES, Jr., J .

In recently decided cases involving claims for disability beneits, the Court ruled that the companydesignated physician must arrive at and issue a deinite assessment of the seafarer's itness to work or   permanent disability within the period of 120 days. If the company-designated physician fails to give his assessment within the 120-day period but there is suficient justiication for the delay (e.g. the seafarer's condition required further medical treatment or on-going rehabilitation), the 120-day   period shall be extended to 240 days. If the company-designated company-designated physician still fails to give a inal  assessment within the extended period and the seafarer's medical condition remains unresolved after  the lapse of said period, the seafarer's disability shall be deemed permanent and total.

FACTS:

MST is a Philippine-registered manning agency engaged in the recruitment of seafarers for its foreign principal, TSM, a Norwegian shipping company.

Tulabing is a seafarer formerly under the employ of TSM. His employment was covered by the Norwegian International Ship Register collective bargaining agreement (NIS-CBA), between the Norwegian Shipowners' Association (NSA), on the one hand, and the Associate Marine Oficers' and Seamen's Union of the Philippines (AMOSUP) and the Norwegian Seafarer's Union (NSU), on the other.

On August 23, 2007, MST, in behalf of TSM, employed Tulabing as GP2 Wiper for the vessel M/T Champion Cham pion.. Covered Covered by a Philippin Philippine e Overseas Overseas Employmen Employmentt Administ Administrati ration on (POEA)-app (POEA)-approve roved d Contract of Employment, Tulabing's employment was for a period of nine months with a basic monthly salary of US$454.00. On September 13, 2007, Tulabing embarked on his voyage on board M/T Champion and commenced the performance of his duties pursuant to his Contract.

Sometime in January 2008, while engaged in the performance of his duties, he felt a sudden crack  on his back which was followed by a severe pain and numbness of the left side of his body. He was referred to a physician in Brazil for medical evaluation and was given medicine but eventually his condition aggravated and radiated to his left shoulder and upper extremities.

 

Subsequently, Tulabing complained of chest pain, hence, he was referred by the vessel master to Dr. J.J. Voorsluis of the Medical Centre for Seamen in Amsterdam, Netherlands for medical examination. Dr. Voorsluis diagnosed him of cervical neuralgia and was declared unit to work for four days with the recommendation that should his medical condition fail to improve, he should be repatriated back to the Philippines.On June 13, 2008, Tulabing was repatriated back to the Philippines.

On June 17, 2008, Tulabing reported to Dr. Nicomedes Cruz, the company-designated physician for medical evaluation. Dr. Cruz conirmed Dr. Voorsluis' diagnosis of Tulabing's cervical neuralgia and noted the persistence of his upper back pain which continued to radiate to his left shoulder and upper left extremities. Dr. Cruz issued a Medical Report, ordering an x-ray of Tulabing's cervical spine and his referral to an orthopedic surgeon for specialized examination, and directing him to return for further evaluation.

Tulabing underwent physical rehabilitation from October to December of 2008 under the medical attention of specialist Dr. Reynaldo Matias, who regularly submitted to Dr. Cruz his evaluations of  Tulabing's condition. Based on the suggestion of Dr. Matias, Dr. Cruz assessed Tulabing's condition as Grade 10 disability.

Tulabing, however, did not agree and demanded from MST the payment of maximum disability compensation in the amount of US$70,000.00 pursuant to Article 12 of the NIS-CBA. MST denied Tulabing's claim and instead offered him compensation in the amount of US$14,105.00. Tulabing refused the offer, insisting that he is entitled to full compensation. The parties initially submitted the dispute to the AMOSUP pursuant to the grievance procedure speciied in the NIS-CBA but no settlement was obtained thereat.

Subsequently, Tulabing iled with the NLRC a complaint against MST for payment of permanent  total tot al disab disabili ility ty benei beneits ts.. MST MST denied denied lia liabil bility ity on th the e ground ground that that under under the provis provision ionss of his employment contract and the NIS-CBA, a seafarer is only entitled to claim maximum disability compensation of US$70,000.00 if the company-designated physician declares him to be suffering from Grade 1 disability. On December 29, 2009, Labor Arbiter Catalino R. Laderas rendered a Decision in favor of MST. Aggrieved, Tulabing appealed to the NLRC asserting his entitlement to the full permanent total disability compensation. However, during the pendency of his appeal, Tulabing consulted orthopedic surgeon Dr. Alan Leonardo Raymundo of the Philippine Orthopedic Institute, Makati City. In a Medical Report dated June 15, 2010, Dr. Raymundo diagnosed Tulabing of cervical neuropraxia neuroprax ia and declared him unit for resumption of duty.

 

On August 16, 2010, the NLRC rendered its Decision, setting aside the LA's decision. On September 21, 2010, MST moved for reconsideration but the same was denied by the NLRC. Undeterred, MST iled a petition for certiorari in the CA which afirmed the earlier Decision of the NLRC. Due to the denial of the motion for reconsideration, the case was elevated to the SC.

ISSUE:

Whether Tulabing is entitled to the award of full  disability  disability beneits of US$70,000.00. (NO)

RULING:

By correlating and harmonizing the provisions of Article 192(c)(1) of the Labor Code and Section 2, Rule X of the Amended Rules on Employees' Compensation, the prevailing rule as it now stands is that the 120-day initial period may be extended for the purpose of determining the seafarer's grade of disability. In recently decided cases involving claims for disability beneits, the Court ruled that  the company-designated physician must arrive at and issue a deinite assessment of the seafarer's itness to work or permanent disability within the period of 120 days. If the company-designated physician fails to give his assessment within the 120-day period but there is suficient justiication for the de delay lay (e.g. (e.g. the seafar seafarer' er'ss condit condition ion requir required ed furthe furtherr medica medicall tr treat eatmen mentt or on-goi on-going ng rehabili reha bilitati tation), on), the 120-day period period shall be extended extended to 240 days. If the company-d company-design esignated ated physician still fails to give a inal assessment within the extended period and the seafarer's medical condition cond ition remains remains unresolv unresolved ed after after the lapse of said period, the seafarer seafarer's 's disability disability shall be deemed permanent and total.

The only instance when the assessment of a company-designated physician may be challenged is when whe n the seafar seafarer er lik likewi ewise se consul consulted ted with with his person personal al physi physicia cian n who issued issued a dif differ ferent  ent  assessment. The conlicting assessments shall be settled by referring the matter to a neutral thirdparty physician, whose assessment shall be inal and binding.

It bears emphasizing that Tulabing only sought a second opinion and consulted Dr. Raymundo when the LA decided against his claim of full disability beneits. In fact, his appeal was already pending with the NLRC when such consultation was made. This move on Tulabing's part appears to be nothing but a mere afterthought given the length of time that has already passed since Dr. Cruz's inal Dr. Raymundo the Medical Reportevaluation only on June or almost yearsassessment. (728 days) from the date ofissued Tulabing's irst medical after15, his2010 repatriation to two the

 

Philippines. Moreover, even if the Court were to consider the irrationally late assessment issued by Dr. Raymundo, the assessment of Dr. Cruz must still prevail for failure of the parties to refer the matter to a third-party physician, as required by the Rulesand jurisprudence.

ORIENT HOPE AGENCIES, INC. AND/OR ZEO MARINE CORPORATION , Petitioners, v. MICHAEL E. JARA, Respondent . G.R. No. 204307, THIRD DIVISION, June 06, 2018, LEONEN, J.

Failure of the company-designated company-designated physician to render a inal and deinitive assessment of a seafarer's condition within the 240-day extended period transforms the seafarer's temporary and total disability  to permanent and total disability. FACTS:

Jara was hired by Orient Hope, on behalf of its foreign principal, Zeo Marine, as engine cadet on board M/V Orchid Sun.The employment contract was for duration of 10 months with a basic monthly salary of US$230.00. On its way to Oman, M/V Orchid Sun sank off Muscat on July 12, 2007, during which Jara sustained leg injuries. He was treated at Khoula Hospital in Oman and thereafter repatriated and admitted on August 3, 2007 at the Metropolitan Hospital in Manila. Jara was diagnosed to have suffered from "fracture, shaft of left ulna and left ibula." On August 28, 2007 and January 9, 2008, he underwent knee operations. He did not return to the company-designated doctor after his check up on March 17, 2008. Meanwhile, on March 6, 2008,Jara iled a complaint with the Labor Arbiter, insisting that he was entitled to total permanent permanent disability beneits amounting to US$60,000.00. On May 29, 2008, Assistant Medical Coordinator Dr. Mylene Cruz Balbon of the Marine Medical Services of Metropolitan Medical Center issued a letter, stating that based on his last follow-up, his sugges sug gested ted disab disabili ility ty gradin grading g is Gr Grade ade 11 – st stret retchi ching ng leg or lig ligame ament ntss of a knee knee result resulting ing in instability of the joint. Labor Arbite Labor Arbiterr Da Danie niell J. Cajil Cajilig ig found found Jara Jara entit entitled led to compe compensa nsatio tion n equiv equivale alent nt to Grade Grade 11 disability. He solely relied on the assessment of the company-designated physician. He found no eviden evi dence ce or other other med medica icall report report on record record to disput dispute e the compan company y design designate ated d physic physician ian's 's determination determinat ion and to support Jara's claim. The National Labor Relations Commission afirmed the Labor Arbiter's award. Jara iled a Motion for reconsideration but it was denied by the NLRC.

 

Insisting that he was entitled to permanent disability compensation, Jara elevated the matter to the Court of Appeals through a Petition for Certiorari under Rule 65. In its August 15, 2012 Decision, the Court of Appeals held that Jara was "entitled to permanent  disabilit disab ility y beneits beneits because the assessmen assessmentt of the company-d company-design esignated ated physicia physician n that he was suffering from a grade '11' disability was issued after nine (9) months or more than 120 days from the time he was medically repatriated.”

ISSUE:

Whetherr or not respon Whethe responden dentt Jara Jara is entit entitled led to perma permanen nentt and total total disab disabili ility ty compe compensa nsatio tion n consid con sideri ering ng that that there there was a Grade Grade 11 disabi disabilit lity y gradin grading g given given by the compan company-d y-desi esigna gnated ted physician (YES) RULING:

The prevailing rule is that a seafarer's mere inability to perform his or her usual work after 120 days does not automatically lead to entitlement to permanent and total disability beneits because the 120-day period for treatment and medical evaluation by a company-designated physician may be extended to a maximum of 240 days. However, there must be a suficient justiication to extend the medical treatment from 120 days to 240 days. In other words, the 240-day extended period remains to be an exception, and as such, must be clearly shown to be warranted under the circumstances of the case before it can be applied.  Applying the case of Talaroc v. Arpaphil Shipping Corp. stressed that for a company-designated physician to avail of the extended 240-day period, he or she must perform some complete and deinite medical assessment to show that the illness still requires medical attendance beyond the

120 days, but not to exceed 240 days. In such case, the temporary total disability period is extended to a maximum of 240 days. Without suficient justiication for the extension of the treatment period, a seafar seafarer' er'ss dis disabi abilit lity y shall shall be conclu conclusiv sively ely presu presumed med to be perman permanent ent and total. total. This This Cou Court  rt  summarized the following guidelines to be observed when a seafarer claims permanent and total disability beneits: 1. The company-designated company-designated physician physician must issue a inal inal medical assessment assessment on the the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him; 2. If the company-de company-design signated ated physicia physician n fails to give his assessm assessment ent within within the period period of 120 days, without any justiiable reason, then the seafarer's disability becomes permanent and total; 3. If the company-de company-design signated ated physicia physician n fails to give his assessm assessment ent within within the period period of 120 days with a suficient justiication (e.g., seafarer required further medical treatment or

 

seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has suficient justiication to extend the period; and 4. If the company-desi company-designat gnated ed physician physician still fails to give his assessment assessment within within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justiication. justiication. Accordingly, in Carcedo v. Maine Marine Philippines, Inc .,this Court declared that a partial and permanen perm anentt disabilit disability y could, could, by legal legal contempl contemplatio ation, n, become become total total and permanent permanent when a company-designated physician fails to arrive at a deinite assessment within the 120- or 240day periods prescribed under Article 198 [192](c)(1) of the Labor Code and the Amended Rules on Employee Compensation, implementing implementing Book IV, Title II of the Labor Code.

DIONELLA A. GOPIO, doing business under the name and style, JOB ASIA MANAGEMENT SERVICES, Petitioner vs. SALVADOR B. BAUTISTA , Respondent

G.R. No. 205953, June 06, 2018, JARDELEZA, J. The due process requirement is not a mere formality that may be dispensed with at will… To meet the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices before termination of employment can be legally effected, i.e.: (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice after due hearing which informs the employee of the employer's decision to dismiss him. The Labor Code requires both notice and hearing; notice alone will not sufice. FACTS:

Bautista was hired as a Project Manager for Shorncliffe in Papua New Guinea through Job Asia which whi ch is engage engaged d in the busine business ss of recrui recruitm tment ent,, proce processi ssing ng,, and deploy deploymen mentt of land land based based manpower for overseas work. Bautista's contract stated that his employment shall be valid and effective for 31 months. Just nine months after his deployment in Papua New Guinea, Bautista was served a notice of termination on the alleged grounds of unsatisfactory performance and failure to meet the standards of the company. He was paid his salary for the period July 1 to 10, 2009, annual leave credits, and one-month pay net of taxes. Thereafter, he was repatriated on July 11, 2009. Bautista lodged a complaint for illegal dismissal and monetary claims. ISSUE:

1) Whether or not Bautista was illegally dismissed from employment (YES) 2) Whether or not he is entitled to his monetary claims (YES)

RULING:

 

I. Petit Petition ioner er ailed ailed to prove prove by substa substanti ntial al evi eviden dence ce that that th the e respon responden dentt was validl validly y dismissed.

The Philippine Constitution and laws guarantee special protection to workers here and abroad. Thus, even if a Filipino is employed abroad, he or she is entitled to security of tenure, among other constitutional rights. Here, petit Here, petition ioner er argues argues that that there there was justi justiiab iable le cause cause for the te termi rminat nation ion of Bautis Bautista' ta' s employment since the latter has fallen short of Shomcliffe's employment and work standards… The Court is not convinced. As observed by the CA, the evaluation report was made… beyond the date o termination o  Bautista's employment  on   on July 10, 2009. The CA correctly concluded that these were made as an aterthou atert hought ght in ord order er to lend lend creden credence ce to the claim claim that that th the e termi terminat nation ion o Bauti Bautista sta's 's employment was or a valid reason.

The Court thus inds that Bautista's incompetence as the alleged just cause for his dismissal was not  proven by substantial evidence. II. Article 4.3 o the employment contract is void.

In addition, Bautista was not accorded due process. Consequently, the Court is not convinced that  he was legally dismissed. The due process requirement is not a mere formality that may be dispensed with at will… To meet  the requirements of due process, the employer must furnish the worker sought to be dismissed with two written notices   before termination of employment can be legally effected, i.e.: (1) a notice which apprises the employee of the particular acts or omissions for which his dismissal is sought sou ght;; and (2) the the subseq subsequen uentt notice notice after after due hearin hearing g which which inf infor orms ms the employ employee ee of the employer's decision to dismiss him. Here, Bautista was dismissed under Article 4.3 of the employment contract which allegedly permits his employer, Shomcliffe, to terminate the contract on unspeciied "other grounds" by giving one month's written notice of its intention to terminate, or in lieu thereof, to pay the employee a sum equivalent to one month's salary. Bautista was notiied on July 6, 2009 that his services will be terminated effective on the close of  business hours on July 10, 2009, allegedly because his performance was "unsatisfactory and did not  meet the standards of the Company." He was also paid one-month salary in lieu of one month's notice of the termination of his employment. Surely, this cannot be considered compliance with the two-notice requirement mandated by the Labor Code in eecting a valid dismissal. The Labor Code requires both notice and hearing; notice alone will not sufice. The requirement of 

notice is intended to inform the employee concerned of the employer's intent to dismiss him and the reason for the proposed dismissal. On the other hand, the requirement of hearing affords the employee an opportunity to answer his employer's charges against him and accordingly defend

 

himself therefrom before dismissal is effected. In this case, Bautista was not given a chance to defend himself. Five days after the notice was served, he was repatriated. Clearly, he was denied his right to due process. The CA aptly observed that Article 4.3 deprives the employee o his right to due process o  law as it gives the employer the option o ption to do away with the notice requirement provided that  it grants one-month salary to the employee in lieu thereo. It denies the employee of the right 

to be apprised of the grounds for the termination of his employment without giving him an opportun oppo rtunity ity to defend defend himself himself and refute refute the charges against him. More Moreover over,, the term "other "other grounds" grou nds" is all-encom all-encompass passing. ing. It makes makes the employee employee suscepti susceptible ble to arbitrar arbitrary y dismissal. dismissal. The employee may be terminated not only for just or authorized causes but also for anything under the sun that may suit his employer. Thus, the employee is left unprotected and at the mercy of his employer, subjected to the latter's whims. We cannot sustain the validity o Article 4.3 o the employment contract as it contravenes the constitutionally-protected right o every worker to security o tenure.

Bautista's employment was for a ixed period of 31 months. Article 4.3 took back this period from him by rendering it in effect a facultative one at the option of Shomcliffe, which may shorten that  term at any time and for any cause satisfactory to itself, to a one-month period or even less, by simply simp ly paying Bautista Bautista a month's salary. The net eect o Article 4.3 is to render Bautista's employment basically employment at the pleasure o Shomclie.  The Court considers that the provision is intended to prevent any security of tenure from accruing in favor of Bautista even during the limited period of 31 months. To emphasize, overseas workers, regardless o their classification, are entitled to security o  tenure, at least or the period agreed upon in their contracts . This means that they cannot be dismissed before the end of their contract terms without due process. The law recognizes the right  of an employer to dismiss employees in warranted cases, but it frowns upon the arbitrary and whimsical exercise of that right when employees are not accorded due process. If they were illegally dismissed, the workers' right to security of tenure is violated. Indeed, while our Civil Code recognizes that parties may stipulate in their contracts such terms and conditions as they may deem convenient, these terms and conditions must not be contrary to law, morals, good customs, public order or policy. The employment contract between Shomclie and Bautista is governed by Philippine labor laws. Hence, the stipulations, clauses, and terms and conditions o the contract must not contravene our labor law provisions. Time and again, we have held that a contract o employment is imbued with public interest.

The parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other. Also, while a contract is the law betwee bet ween n the par partie ties, s, the provi provisio sions ns of pos positi itive ve law that that regula regulate te such such con contr tract actss are deemed deemed included and shall limit and govern the relations between the parties. In sum, there being no showing of any clear, valid, and legal cause for the termination of Bautista's employment and that he was not afforded due process, the law considers the matter a case o 

 

illegal dismissal or which Bautista is entitled to indemnity.   We uphold the Labor Arbiter's

award of indemnity equivalent to Bautista's salaries for the unexpired term of his employment  contract, and damages. III. Respondent shall be entitled to monetary claims

Section 10 of R.A. No. 8042 provides that in case of termination of overseas employment without  just, valid or authorized cause as deined by law or contract, the workers shall be entitled to the ull reimbursement o his placement ee with interest o 12% per 12%  per annum, plus annum, plus his salaries or the unexpired portion o his employment contract or or three months or every year o  the unexpired term, whichever is less.

We declared the clause "or for three months for every year of the unexpired term, whichever is less" unconstitutional in the 2009 case of Serrano v. Gallant ,Maritime Services, Inc.,  and again in the 2014 case of Sameer Overseas Placement Agency, Inc. v. Cabiles,  after the provision found its way again in R.A. No. 10022 which took effect in 2010. We held that the clause violated substantive due process and the equal protection clause of the Constitution in that it generated classiications among workers that do not rest on any real or substantial distinctions that would justify different  treatments in terms of the computation of money claims resulting from illegal termination. We also upheld the Labor Arbiter's award of moral and exemplary damages to Bautista on the ground that his dismissal was without just and authorized cause, in complete disregard of his right  to due process of law, and done in bad faith, in addition to being anti-Filipino and capricious. Likewise, we ind the award of attorney's fees proper. IV. Petitioner is jointly and severally liable with Shomclie.

Petitioner's argument that she should not be held jointly and severally liable with Shomcliffe for the payment of monetary awards to Bautista as she had no control over the manner of implementation of the employment contract, she had no hand whatsoever in Bautista' s dismissal, and that her agency was extinguished as soon as the employee was deployed to and have worked in Shomcliffe's construction project in Papua New Guinea, has no merit. In the first place, such joint and solidary liability is required prior to the issuance o a license to petitioner to operate a recruitment agency. The liability o the principal/employer and the recruitment/placement -agency or any and all claims under this section shall be joint and several.  This provision shall be incorporated in

the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be iled by the recruitment/placement agency, as provided by law, shall be an answ swer erab able le fo forr al alll mo mone ney y clai claims ms or dama damage gess th that at may may be awar awarde ded d to th the e work worker ers. s. If th the e recrui rec ruitm tment ent/p /plac laceme ement nt age agency ncy is a juridi juridical cal be being ing,, the corpor corporate ate of ofice icers rs and and direct directors ors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership partners hip for the aforesaid claims and damages.

 

GAUDENCIO MORALES, Petitioners, Petitioners,  - versus- RODEL D. D . DELOS REYES, Respondent.

G.R. No. 215111, FIRST DIVISION, June 20, 2018, DEL CASTILLO, J.

Referral to a third doctor is mandatory when: (1) there is a valid and timely assessment by the company-designated physician and (2) the appointed doctor of the seafarer refuted such assessment. The Court has consistently ruled that  in   in case o conflicting medical assessments, reerral to a third doctor doctor is mandatory mandatory;; and that in the absence of a third doctor's opinion, it is the medical  assessment of the company-designated physician that should prevail. In this case, respondent failed to refer the conlicting conlicting medical assessments to a third doctor  FACTS:

Petitioner Petition er Abosta Abosta Shipmana Shipmanageme gement nt Corp. Corp. is a duly licensed licensed manning manning agency agency while petitioner petitioner Panstar Pans tar Shipping Shipping,, Co., Ltd. is a foreign foreign principa principall agency agency based based in Korea. Korea. Petition Petitioner er Gaudencio Gaudencio Morales, on the other hand, is an oficer of petitioner Abosta. On March 30, 2010, petitioner Abosta employed respondent Rodel D. Delos Reyes as a bosun on board boa rd the vessel vessel MV St Stell ellar ar Daisy Daisy for a period period of nine nine months months.. Before Before bo board arding ing the vessel vessel,, respondent underwent a Pre-Employment Medical Examination and was declared it to work. On July 2010, respondent complained of pain in his groin while performing his duties. He received treatment in Korea and was diagnosed with Inguinal Hernia. On August August 23, 2010, upon recommen recommendatio dation n of the companycompany-desig designate nated d physicia physician, n, responden respondent  t  underwent right inginual herniorrhaphy with mesh imposition. Two days after, respondent was discharged from the hospital and was paid two months sickness allowance. September 2, 2010, respondent was declared it to work by the company-designated physician. On July 19, 2011, respondent consulted Dr. Li-Ann Lara- Orencia, who found him to be permanently unit to work and suffering from a Grade 1 disability which prompted the respondent to ile a Complaint for Disability Beneits, Damages and Attorney's fees. The Labor Arbiter dismissed the complaint for lack of merit. It gave more credence to the medical assessment of the company-designated physician asphysician, it was based severalwhich months treatment as against the medical assessment of the independent Dr.on Orencia, wasofissued almost  a year after respondent was repatriated. The NLRC afirmed the dismissal of the Complaints since it  found no error on the part of the Labor Arbiter in giving credence to the medical assessment of the company-designated physician. It ruled that the assessment of the company-designated physician prevailed considering that respondent failed to seek the opinion of a third doctor as provided in the Philippine Overseas Employment Administration (POEA) Standard Employment Contract (SEC). CA reversed and set aside the Decision and Resolution of the NLRC. The CA found respondent  entitled to total and permanent disability compensation since his illness rendered him unit to resume his duties as bosun, which requires physical exertion, lifting, and carrying heavy objects. ISSUE:

Whether respondent is entitled to total and permanent disability compensation. RULING:

 

There is total disability when employee is unable "to earn wages in the same kind of work or work  of similar nature that he or she was trained for, or accustomed to perform, or any kind of work  which a person of his or her mentality and attainments could do." On the other hand, there is permanent disability when the worker is unable "to perform his or her job for more than 120 days (or 240 days, as the case may be), regardless of whether or not he loses the use of any part of his or her body." In this case, respondent was repatriated for medical treatment. Two months ater his surgery or with within in the the 120-d 120-day ay peri period od,, he wa wass decl declar ared ed fit fit to work work by th the e co comp mpan anyy-de desi sign gnat ated ed physician.

Section 20 (B)(3) of the 2000 POEA-SEC provides that:

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 it to work or the degree of  permanent disability disability has been assessed by the company-designated physician but in no case shall it exceed one hundred twenty (120) days. xxxx I a doctor appointed by the seaarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seaarer. The third doctor's decision shall be final and binding on both parties.

In Marlow Navigation Philippines, Inc. v. Osias,  the Court declared that Based on the above-cited provision, the reerral to a third doctor is mandatory when: (1) there is a valid and timely assessment by the company-designated physician and (2) the appointed doctor of the seafarer refuted such assessment. assessment. In this case, respondent, after consulting with Dr. Orencia, who happened to be the same doctor in Marlow, failed to refer the conlicting medical assessments to a third doctor. In fact, after consulting with Dr. Orencia, Orencia, responde respondent nt immediate immediately ly iled iled the instant instant complaint complaint without irst irst notifyin notifying g petitioners. For this reason alone, the CA should not have given any credence to the Medical Report o Dr. Orencia.   The Court has consistently ruled that in case o conflicting medical assessments, reerral to a third doctor is mandatory; and that in the absence o a third doctor's opinion, it is the medical assessment o the company-designated physician that  should prevail.

Moreover, Moreov er, we in ind d it signi signiica icant nt to not note e that that medica medicall assess assessmen mentt of the compan company-d y-desi esign gnate ated d physician is more reliable considering that it was based on the treatment and medical evaluation done on respondent, which showed that the treatment or surgery undergone by respondent was successful, while Dr. Orencia's medical assessment merely quoted the medical deinition of hernia and some studies on the possibility of recurrence of the illness. Under prevailing jurisprudence, "the assessment assessment o the company-design company-designated ated physician physician is more credible or having having been arrived at ater months o medical attendance and diagnosis, compared with the assessment  o a private physician done in one day on the basis o an examination or existing medical records."

 

 ALDRINE B. ILUSTRICIMO, Petitioner , -versus- NYK-FIL SHIP MANAGEMENT, INC./INTERNATIONAL CRUISE SERVICES, LTD. AND/OR JOSEPHINE J. FRANCISCO, Respondents.. Respondents

G.R. No. 237487, THIRD DIVISION, June 27, 2018, VELASCO JR., J.

For disability to be compensable under Section 20(A) of the 2010 POEA-SEC, two elements must  concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must  have existed during the term of the seafarer's employment contract. The same provision deines a work-related illness is "any sickness as a result of an occupational disease listed under Section 32-A of  [the] Contract with the conditions set therein satisied." Meanwhile, illnesses not mentioned under  Sectio Sec tion n 32 of the POEAPOEA-SEC SEC are disput disputab ably ly presum presumed ed as workwork-rel relate ated. d. Notwi Notwiths thstan tandin ding g the  presumption of work-relatedness of an illness under Section 20(A)(4), the seafarer must still prove by  substantial evidence that his work conditions caused or, at least, increased the risk of contracting the disease.

No less than respondents' doctor diagnosed the petitioner with bladder cancer and opined that his occupation exposed him to elements that increased his risk of contracting the illness. As found by the VA, petitioner was employed by the respondents for 21 years. It is, therefore, not implausible to conclude that petitioner's work may have caused, contributed, or at least aggravated his illness. Given the company doctors' conclusion and the afore-stated facts, the burden on the part of petitioner to  prove the causality causality of his illness and and occupation occupation had been eliminated. eliminated.

FACTS:

Petitioner was engaged by respondent International Cruise Services Ltd., through respondent NYKFil Ship Management, Inc. (NYK), as a Quarter Master onboard its vessels. His last employment with the respondents was on board the vessel MV Crystal Serenity. While MV Crystal Serenity was on its way to Florida, USA, petitioner started experiencing gross hematuria, or blood in his urine. He reported the matter to his superiors and was given antibiotics for suspected urinary tract infection. Due to his medical condition, petitioner was brought to a hospital in Key West, Florida, where he was subjected to a CT Scan. The results revealed the presence of three polypoid masses in his bladder. Petitioner was medically repatriated and immediately referred to the company-accredited hospital for treatment. Dr. Nicomedes Cruz, the company-designated doctor, diagnosed him with "bladder cancer." Dr. Cruz issued petitioner with a inal assessment of Grade 7 disability-moderate residuals or disorder of the intra-abdominal organ.

 

Petitioner underwent another operation using his own funds. This prompted him to secure the opinion of another physician, Dr. Richard Combe, who diagnosed him with bladder mass and declared him unit to work due to his need to undergo instillation chemotherapy and cystoscopy every three months. Thereafter, petitioner, thru counsel, sent respondents a letter claiming total and permanent disability beneits. beneits. Notwithstanding Notwithstanding petitioner's communication, respondents failed to respond, prompting him to ile a complaint for total and permanent disability disability before the NCMB.

The VA issued a Decision in favor of the petitioner and, accordingly, ordered respondents to pay him total and permanent disability beneits in the amount of USD95,949.00. The CA adjudged responden resp ondents ts liable liable only for partial partial permane permanent nt disabilit disability y bene beneits its under under the parties' parties' Collectiv Collective e Bargaining Agreement amounting to USD40,106.98.

Petitioner claims that the CA's reliance on the Grade 7 disability rating given by the companydesignated doctor is based on the lawed inding that he failed to secure the opinion of a second doctor. He likewise faults the respondents for the non-referral of the case to a third doctor as required under Section 20(A)(3) of the POEA-SEC since the latter ignored his request to undergo another medical examination to prove the extent of the disability being claimed.

Respondents, for their part, insist that petitioner's illness is not compensable since it is not listed as an occupational disease under Section 32 of the POEA-SEC. Assuming that petitioner's condition is disput dis putabl ably y presu presume med d to be work-r work-rela elated ted,, the burden burden lie liess upo upon n him to prove prove that that his work  work  contributed/aggravated his illness, a burden which, according to the respondents, he failed to discharge. And even if petitioner's illness is compensable, respondents maintain that the disability rating of Grade 7 given by its doctor should prevail in view of his failure to prove that he sought a second medical opinion and to seek for the opinion of a third doctor, as provided for in the POEASEC.

ISSUE:

Whether or not the CA erred in ruling that petitioner is not entitled to total and permanent  disability beneits.

RULING:

 

For disability to be compensable under Section 20(A) of the 2010 POEA-SEC, two elements must  concur: (1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract. The same provision deines a work-related illness is "any sickness as a result of an occupational disease listed under Section 32-A of [the] Contract with the conditions set therein satisied." Meanwhile, illnesses not  mentioned under Section 32 of the POEA-SEC are disputably presumed as work-related. Notwithstanding the presumption of work-relatedness of an illness under Section 20(A)(4), the seafarer must still prove by substantial evidence that his work conditions caused or, at least, increased the risk of contracting the disease.

Settled is the rule that for illness to be compensable, it is not necessary that the nature of the employment be the sole and only reason for the illness suffered by the seafarer. It is suficient that  there is a reasonable linkage between the disease suffered by the employee and his work to lead a rational mind to conclude that his work may have contributed to the establishment or, at the very least, aggravation of any pre-existing condition he might have had.

No less than respondents' doctor diagnosed the petitioner with bladder cancer and opined that his occupation exposed him to elements that increased his risk of contracting the illness. As found by the VA, petitioner was employed by the respondents for 21 years. It is, therefore, not implausible to conclude that petitioner's work may have caused, contributed, or at least aggravated his illness. Given Giv en the compan company y doctor doctors' s' conclu conclusio sion n and and the aforeafore-sta stated ted fa facts cts,, the burden burden on th the e part part of  petitioner to prove the causality of his illness and occupation had been eliminated.

Anent the matter of compliance with the third-doctor referral procedure in the POEA-SEC, Section 20(A)(3) of the contract provides that if a doctor appointed by the seafarer disagrees with the assessment of the company-designated doctor, a third doctor may be agreed jointly between the employer and the seafarer, and the third doctor's decision shall be inal and binding on both parties:

SECTION 20. COMPENSATION AND BENEFITS

COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS

The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows:

 

3. x x x

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 inal and binding on both parties. (Emphasis supplied)

This referral to a third doctor has been held by the Court to be a mandatory procedure as a consequence of the provision in the POEA-SEC that the company-designated doctor's assessment  should prevail in case of non-observance of the third doctor referral provision in the contract. Stated otherwise, the company can insist on its disability rating even against the contrary opinion by another doctor, unless the seafarer expresses his disagreement by asking for a referral to a third doctor who shall make his or her determination and whose decision shall be inal and binding on the parties.

According to the respondents, petitioner's second medical opinion only came to their knowledge during one of the scheduled mandatory conferences before the VA. They argue that petitioner's failure to communicate his separate medical certiication prior to the iling of the complaint not  only constitutes a breach of his contractual obligations under the POEA-SEC, but also renders the complaint premature and is a ground for the dismissal of his claim for disability beneits.

Respondents do not deny receiving petitioner's October 16, 2015 letter despite their insistence that  he failed to activate the third doctor provision. In fact, respondents repeatedly insisted that the letter was not meant to dispute the company-designated doctor's assessment, but rather to inform them that petitio petitioner ner needed needed continue continued d medical medical assistan assistance. ce. On the assumptio assumption n that petitioner petitioner indeed "belatedly" informed respondents of the opinion of his second doctor and his intent to refer his case to a third doctor, the fact remains that they have been notiied of such intent.

The POEA-SEC does not require a speciic period within which the parties may seek the opinion of a third doctor, and they may do so even during the mandatory conference before the labor tribunals. Accordingly, upon being notiied of petitioner's intent to dispute the company doctors' indings, whether prior or during the mandatory conference, the burden to refer the case to a third doctor has shifted to the respondents. This, they failed to do so, and petitioner cannot be faulted for the non-referral.l. Consequently, the company-designated non-referra company-designated doctors' assessment is not binding.

 

In any event, the rule that the company-designated physician's indings shall prevail in case of nonreferral of the case to a third doctor is not a hard and fast rule. It has been previously held that  labor tribunals and the courts are not bound by the medical indings of the company-designated physician and that the inherent merits of its medical indings will be weighed and duly considered.

In keeping with the avowed policy of the State to give maximum aid and full protection to labor, the Court has applied the Labor Code concept of disability to Filipino seafarers. Thus, We have held that  the notion notion of disabi disabilit lity y is intima intimatel tely y relate related d to the worke worker's r's cap capaci acity ty to earn, earn, and what is compensated is not his injury or illness but his inability to work resulting in the impairment of his earning capacity. Hence, disability should be understood less on its medical signiicance but more on the loss of earning capacity.

In determining whether a disability is total or partial, what is crucial is whether the employee who suffered from disability could still perform his work notwithstanding the disability he met. A permanent partial disability, on the other hand, presupposes a seafarer's itness to resume sea duties before the end of the 120/240-day medical treatment period despite the injuries sustained and works on the premise that such partial injuries did not disable a seafarer to earn wages in the same kind of work or similar nature for which he was trained.

Petitioner cannot be expected to resume sea duties if the risk of contracting his illness is associated with his previous occupation as Quarter Master. Indeed, records do not show that he was reemployed by respondent NYK or by any other manning agency from the time of his repatriation until the iling of the instant petition. Moreover, the recurrence of mass in petitioner's bladder, the requir req uirem ement ent by both both the compan company y doctor doctor and his person personal al doc doctor tor that that he und underg ergo o repeat  repeat  cystoscopy to monitor polyp growth, his subsequent operation to remove the growing polyps in his bladder even after the lapse of the 240-day period for treatment and despite the inal disability grading given, all suficiently show that his disability is total and permanent. permanent.

Petitioner's disability being permanent and total, he is entitled to 100% compensation in the amount of US$95,949.00 as stipulated in par. 20.9 of the parties' CBA and as adjudged by the VA.