835 Phil. 766
CAGUIOA, J:
[Borja] was employed as oiler by YMSI, for and on behalf of its principal OSSA, for a period of nine (9) months. He boarded the vessel M/V Thetis on April 20, 2010. On November 9, 2010, after doing maintenance work and lifting a metal plate, he felt "pain in the buttocks radiating down the back of his leg." He was referred to a company physician in Taixing, China, who diagnosed him to have inter-vertebral protrusion. He was declared unfit to work for three (3) months and was advised for "temporary palliative care" or bed rest for one month. He was medically repatriated on November 25, 2010.Aggrieved, petitioners elevated the case to the CA via petition for certiorari.
[Borja] reported to YMSFs office, and he was referred to Marine Medical Services in Metropolitan Medical Center (MMC) on November 27, 2010 and was diagnosed by Dr. Robert D. Lim to have "lumbar strain." He was advised to continue with his medication and to undergo physical therapy in a hospital nearer to his place of residence or at University of Perpetual Help - Dr. Jose Tamayo Medical Center (UPH-DJTMC) in Binan, Laguna, but he reported to Dr. Lim every month for re-evaluation. Respondent also underwent electromyograph (EMG) test at the UPH-DJTMC on January 27, 2011 with the following findings: "chronic bilateral L5-S1 radiculopathies probably secondary to a lumbar canal strenosis."
On April 15, 2011, Dr. William Chuasuan of MMC issued a disability rating "grade 11 - slight rigidity of 1/3 [loss of] motion or lifting power of the trunk." [Borja], nevertheless, continued his therapy at UPH-DJTMC because he was still suffering from back pain. He then demanded for reimbursement of his medical expenses and for payment of total permanent disability, but YMSI denied the claims. Hence, private respondent filed a complaint for payment of salaries/wages for the unexpired portion of the contract, disability benefits and for moral and exemplary damages, as well as, attorney's fees against petitioners with the Labor Arbiter on July 7, 2011.
During the conciliation hearing, the parties agreed to refer private respondent for a third (3rd) medical opinion but private respondent allegedly backed out of the agreement.
On August 20, 2011, private respondent consulted Dr. Manuel C. Jacinto, Jr. at Sta. Teresita General Hospital, Quezon City, who diagnosed him with "chronic low back pain with L5-S1 radiculopathy (9 months)." He was advised for "continuous therapy and repeat MRI" and declared "physically unfit to return to work" or suffering from "total permanent disability."
x x x x
On February 9, 2012, Labor Arbiter Cheryl M. Ampil rendered a decision granting [Borja]'s claim for total permanent disability. The Labor Arbiter held that the test of determining permanent total disability is the inability to perform customary work for more than 120 days, which may be extended until 240 days at the option of the petitioner or the company-designated physician; that petitioners did not extend the period of [Borja]'s medical treatment, but his disability was assessed only on April 15, 2011 or 149 days after repatriation, hence, [Borja] is entitled to permanent total disability of US$60,000.00 as well as to attorney's fees, because he was compelled to litigate and to incur expenses by reason of petitioner's failure to pay the disability benefits. x x x
x x x x
Petitioners appealed to the NLRC asserting that [Borja]'s disability is not determined by mere lapse of the number of days, but by medical findings, by law, and contracts; that the disability grading of the company designated physician is the standard in measuring the disability of a seafarer; that the POEA Standard Employment Contract does not embody a permanent unfitness clause that would entitle the seafarer to full disability; that the fact that complainant was constrained to litigate to protect his interest does not justify the award of attorney's fees in the absence of malice or bad faith, hence, petitioners prayed for the reversal of the decision and dismissal of the complaint.
The NLRC dismissed the appeal on May 15, 2012. It sustained [Borja]'s entitlement to total and permanent disability and attorney's fees. A motion for reconsideration was filed, but the NLRC denied the same on July 9, 2012.[7]
Section 20.Thus, in case there are conflicting findings as to the health condition of the seafarer, a third doctor may be jointly agreed upon by the parties whose findings shall be final and binding.
B. Compensation and Benefits for Injury or Illness
x x x x
3. x x x For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company designated physician within three working days upon his return 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 seafarer. The third doctor's decision shall be final and binding on both parties.
As the party seeking to impugn the certification that the law itself recognizes as prevailing, Constantino bears the burden of positive action to prove that his doctor's findings are correct, as well as the burden to notify the company that a contrary finding had been made by his own physician. Upon such notification, the company must itself respond by setting into motion the process of choosing a third doctor who, as the POEA-SEC provides, can rule with finality on the disputed medical situation.Thus, without the referral to a third doctor, there is no valid challenge to the findings of the company-designated physician. In the absence thereof, the medical pronouncement of the company-designated physician must be upheld. The Court ruled similarly in Vergara v. Hammonia Maritime Services, Inc.[16] (Vergara):
In the absence of a third doctor resolution of the conflicting assessments between Dr. Lim and Dr. Almeda, Dr. Lim's assessment of Constantino's health should stand. Thus, the CA's conclusion that Constantino's inability to work for more than 120 days rendered him permanently disabled cannot be sustained.[15]
The POEA Standard Employment Contract and the CBA clearly provide that when a seafarer sustains a work-related illness or injury while on board the vessel, his fitness or unfitness for work shall be determined by the company-designated physician. If the physician appointed by the seafarer disagrees with the company-designated physician's assessment, the opinion of a third doctor may be agreed jointly between the employer and the seafarer to be the decision final and binding on them.In the Petition,[18] petitioners allege that the parties agreed during the mandatory conference before the Labor Arbiter to seek the opinion of a third doctor. However, this did not materialize because on the next scheduled conference, Borja refused to submit to a third doctor and demanded the payment of total permanent disability benefits. Thus, the conciliation proceedings were terminated, and the parties were directed to submit their position papers.
Thus, while petitioner had the right to seek a second and even a third opinion, the final determination of whose decision must prevail must be done in accordance with an agreed procedure. Unfortunately, the petitioner did not avail of this procedure; hence, we have no option but to declare that the company-designated doctor's certification is the final determination that must prevail.[17] (Emphasis supplied)
[T]he seafarer, upon sign-off from his vessel, must report to the company-designated physician within three (3) days from arrival for diagnosis and treatment. For the duration of 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 fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA Standard Employment Contract and by applicable Philippine 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.[20] (Emphasis supplied)In other words, the seafarer's condition is considered to be temporary total disability for the duration of his treatment which shall have an initial maximum period of 120 days. If the seafarer requires further medical treatment, the period may be extended to 240 days. Within the said periods, the company-designated physician must make an assessment of the seafarer's condition; that is, whether he is "fit to work" or if the seafarer's disability has become partial or total permanent.
In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 32 of this contract. Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted. (Emphasis supplied)However, if after the lapse of 240 days, the seafarer is still incapacitated to perform his usual sea duties and the company-designated physician has not made any assessment at all (whether the seafarer is fit to work or whether his permanent disability is partial or total), it is only then that the conclusive presumption that the seafarer is totally and permanently disabled arises. In Vergara, the Court held:
[A] temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability.[21] (Emphasis and underscoring supplied)In the present case, Borja arrived in the Philippines on November 25, 2010. He had continuous check-ups at Marine Medical Services of Metropolitan Medical Center (MMC). On March 11, 2011, he had a follow-up check-up where he was advised to continue physical therapy and medications. He was advised to return on April 1, 2011 for re-evaluation.[22] Thus, the 120-day period (ending on March 25, 2011) was justifiably-extended as Borja required further medical treatment. On April 15, 2011 the company-designated physician, Dr. William Chuasuan, Orthopedic Surgeon of MMC, issued a disability rating of "Grade 11 - slight rigidity of 1/3 loss of motion or lifting power of the trunk" after Borja's follow up check-up.[23] Thus, the company-designated physician's assessment was made within the allowed 240-day period. Based on the foregoing jurisprudence, therefore, such assessment must be upheld, in the absence of a contrary finding from a third doctor agreed upon by both parties.
It is the doctor's findings that should prevail as he/she is equipped with the proper discernment, knowledge, experience and expertise on what constitutes total or partial disability. His declaration serves as the basis for the degree of disability that can range anywhere from Grade 1 to Grade 14. Notably, this is a serious consideration that cannot be determined by simply counting the number of treatment lapsed days.The rulings of the LA and the NLRC were seriously flawed because they were issued in complete disregard of the conflict-resolution procedure laid down in the POEA-SEC. This case could have been resolved at the conciliation stage with the referral of the matter to a third doctor whose findings would be binding on both parties. And, if the seafarer refused the referral to a third doctor, the complaint should have been dismissed because it is the company-designated physician's opinion that prevails. Significantly, the LA and NLRC decisions did not discuss the disregard of the procedure in obtaining a third opinion. In turn, in affirming the findings of the labor tribunals, the CA committed reversible error.
In light of these distinctions, to confuse the concepts of permanent and total disability is to trigger a situation where disability would be determined by simply counting the duration of the seafarer's illness. This system would inevitably induce the unscrupulous to delay treatment for more than one hundred twenty (120) days to avail of the more favorable award of permanent total disability benefits.[25]