534 Phil. 725
CARPIO MORALES, J.:
THIS IS WITH REGARDS TO YOUR QUERY REGARDING THE CASE OF MR. LAURO HERNANDEZ DIAGNOSED TO HAVE AVASCULAR NECROSIS WITH SEPTIC ARTHRITIS, LEFT HIP; S/P TOTAL HIP REPLACEMENT, LEFT ON FEBRUARY 03, 2000.In the meantime, conciliatory proceedings were conducted on respondent's complaint but no settlement was arrived at.
HE IS NOW TEN WEEKS POST-HIP REPLACEMENT AND IS RECOVERING WELL FROM HIS SURGERY.
IT IS MY OPINION THAT HE WILL EVENTUALLY RECOVER TO THE POINT THAT HE WILL BE SYMPTOMS FREE AS FAR AS PAIN IN THE HIP IS CONCERNED AND HE WILL BE ABLE TO BECOME INDEPENDENT IN ACTIVITIES OF DAILY LIVING.
HOWEVER, IT WOULD BE DOUBTFUL AND WOULD NOT BE ADVISABLE FOR HIM TO RESUME HIS WORK AS A SEAFARER WITH A MECHANICAL HIP JOINT IN PLACE AND CONSIDERING THE AMOUNT OF HEAVY WORK ABOARD A SEA VESSEL.
HIS SUGGESTED DISABILITY GRADING WOULD BE HALF OF GRADE NINE (COMPLETE INABILITY OF A HIP JOINT IN FULL EXTENSION OF THE THIGH).[16]
Presently, patient is ambulant with no hip pain. Patient however has limited range of motion over his left hip joint compared to the right, and has difficulty in squatting. Patient also cannot move briskly in going up and down stairways, walking in ramps and embankments. Difficulty in running is conspicuous even for very short distance.By Decision[23] of October 18, 2001, the Labor Arbiter declared that respondent was entitled to disability benefits, equivalent to half of Grade 9 as found by the company-designated physician, Dr. Tiong Sam N. Lim. Held the Arbiter:
Considering that the medical wall of his acetabulum over the operated side is thin, there is a danger that he might develop protusio acetabuli or some other attrition problems in the future. With these clinical conditions, it is not advisable for the patient to engage in manual work that would entail prolonged standing, running especially carrying heavy objects.[22] (Underscoring supplied)
Respondent appealed to the National Labor Relations Commission (NLRC), claiming that there was prima facie abuse of discretion on the part of the Labor Arbiter in not awarding permanent and total disability benefits, as well as moral and exemplary damages.[26]x x x x
As established, parties signed a POEA contract, the terms and conditions are specified therein. One of the provisions of the contract states that the company-designated physician determines the seaman's disability grading.x x x x
The contract of employment specifically mentions company-designated physician. Dr. Tiong Sam N. Lim, M.D., who opined and suggested that complainant's disability grading would be half of Grade 9 (Complete inability of a hip joint in full extension of the thigh). To agree to the claim of complainant would be to encourage and disregard and violate the government approved contracts, in effect, promoting disrespect to government authorities.[24]
The Arbiter thus disposed:
WHEREFORE, judgment is hereby rendered ordering NYK Fil Ship Management, incorporated to pay Lauro Hernandez his disability benefit in the amount of US$6,530.00 or its equivalent in Philippine Currency at the rate of exchange prevailing of actual payment.
Other claims are dismissed for lack of merit.
Ten percent of the award as attorney's fees.
SO ORDERED.[25] (Underscoring supplied)
WHEREFORE, premises considered, the Decision appealed from is hereby MODIFIED. Accordingly, respondents are hereby ordered to jointly and severally pay the complainant the peso equivalent at the time of actual payment of the sum of SIXTY THOUSAND US DOLLARS (US $60,000) representing total disability benefits, plus ten percent thereof as and by way of attorney's fees.Petitioners' motion for reconsideration[32] having been denied by Resolution[33] of August 30, 2002, they elevated the case to the Court of Appeals on a petition for certiorari.[34]
SO ORDERED.[31] (Underscoring supplied)
Petitioners contend that the appellate court failed to consider that the condition of respondent pre-existed his employment, thereby limiting, if not negating their liability.[38]
- The Appellate Court Disregarded The Terms And Conditions Of The POEA Standard Employment Contract When It Rendered Petitioners Liable To Private Respondent Hernandez For Disability Benefits;
- Corollarily, The Appellate Court Failed To Give Due Weight And Consideration To The Assessment Made By The Company-Designated Physicians As To Private Respondent Hernandez's Disability; And
- The Appellate Court Found Private Respondent Hernandez With Grade 1 Disability And Awarded Him Disability Benefits In The Amount Of US$60,000.00 Which Is Equivalent To A Finding Of Total And Permanent Disability, Despite The Lack Of Any Basis Therefor.[37]
SECTION 20. COMPENSATION AND BENEFITSIn order to hold petitioners liable to respondent for disability benefits, respondent must present concrete proof that he acquired or contracted the injury or illness, which resulted to his disability, during the term of his contract. [45]
x x x x
B. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS:
The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows:However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of his disability has been established by the company-designated physician.
- The employer shall continue to pay the seafarer his wages during the time he is on board the vessel;
- If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated.
- Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.- Upon sign-off of the seafarer from the vessel for medical treatment, the employer shall bear the full cost of repatriation in the event that the seafarer is declared (1) fit for repatriation; or (2) fit to work but the employer is unable to find employment for the seafarer on board his former vessel or another vessel of the employer despite earnest efforts.
- In case of permanent total or partial disability of the seafarer during the term of employment caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits enumerated in Section 30 of his Contract, Computation of his benefits arising from an illness or disease shall be governed by the rates and the rules of compensation application at the illness or disease was contracted.
x x x Capt. Arante could not have contracted cancer of the pancreas while working on board the vessel for only two (2) months. The conclusion is inevitable that when he was diagnosed to be differing from gastro-duodemitis, the same was merely the result of the metastatic spread of his original disease of cancer of the pancreas. It cannot be said that the disease, which caused his death, occurred during his employment. The pre-employment medical examination conduced upon him could not have divulged his disease considering the fact that most, if not all, such examinations are not so exploratory. Therefore, it would be unfair to hold petitioners liable for the amount of death compensation provided for under the standard format contract for such award is unwarranted under the circumstances.[56]Thus, death arising from a pre-existing illness is not compensable. A fortiori, disability arising from a pre-existing illness is not compensable.
[Respondent] was initially seen in our clinic on January 5 & 6, 1999 for Pre-employment Medical Examination. At the time he denied any significant symptoms. The Physical examination chest x-ray and stool examination were unremarkable. His urinalysis however showed trace sugar and he was required to have an FBS done. He came back on January 16, 1999 for the test which turns out to be normal. He was never seen at the clinic after that. Enclose[d] are Xerox copies of his routine slip and laboratory results to a test to the dates mentioned. His PEME was dated January 18, 1999 because this was the date the report was printed and forwarded to our manning center. We were never made aware of the crew that he had an illness immediately after PEME and prior to his embarkation. And probably even manning center as it is their practice to send back to us for pre-departure check-up if there were aware that he acquired an illness after his PEME. If the diagnosis is Avascular Necrosis of the hip with septic arthritis it was not apparent at the time of PEME, note also that it was not even one of the differential diagnosis when he was seen in Davao, and Metropolitan Hospital made the diagnosis only 3 months after disembarkation. X-ray of the hip is not part of the PEME and again would like to underscore the fact that even x-ray of his hip on March 3, 1999 was normal.[58] (Underscoring supplied)For respondent to thus claim that the issuance of a clean bill of health to a seafarer after a PEME means that his illness was acquired during the seafarer's employment is a non sequitor.
We do not agree with the respondent's claim that by the issuance of a clean bill of health to Roberto, made by the physicians selected/accredited by the petitioners, it necessarily follows that the illness for which her husband died was acquired during his employment as a fisherman for the petitioners.It having been satisfactorily shown that respondent was really not fit to work as a boatswain due to his pre-existing illness and, therefore, he is not entitled to disability compensation, necessarily, he is not entitled to attorney's fees.
The pre-employment medical examination conducted on Roberto could not have divulged the disease for which he died, considering the fact that most, if not all, are not so exploratory. The disease of GFR, which is an indicator of chronic renal failure, is measured thru the renal function test. In pre-employment examination, the urine analysis (urinalysis), which is normally included measures only the creatinine, the presence of which cannot conclusively indicate chronic renal failure.[59] (Underscoring supplied)
SECTION 20. COMPENSATION AND BENEFITS
x x x x
The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows:
[45] Petroleum Shipping Limited v. National Labor Relations Commission, G.R. No. 148130. June 16, 2006.
- The employer shall continue to pay the seafarer his wages during the time he is on board the vessel;
- If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated.
However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be so provided at cost to the employer until such time he is declared fit or the degree of is disability has been established by the company-designated physician.- Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor's decision shall be final and binding on both parties.- Those illnesses not listed in Section 32 of this Contract are disputably presumed as work-related.
- Upon sign-off of the seafarer from the vessel for medical treatment, the employer shall bear the full cost of repatriation in the event the seafarer is declared (1) fit for repatriation; or (2) fit to work but the employer is unable to find employment for the seafarer on board his former vessel or another vessel of the employer despite earnest efforts.
- 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 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.