591 Phil. 786
CARPIO MORALES, J.:
x x x The aforementioned decision by the Labor Arbiter was received by the Makati Central Post Office on 12 July 2005 but the same was not delivered to the undersigned law office until 13 July 2005 by Letter Carrier JACOB ZETA. Attached hereto as Annex "A" is a certification issued by Ms. Emily A. Gianan, Chief, Administrative Unit of the Makati Central Post Office stating that the records of their office reflect the undersigned's manifestation that the decision was received by JANICE CANTALOPEZ [of the office of petitioners' counsel] on 13 July 2005, as stated in [petitioners'] Memorandum on Appeal dated 26 July 2005.The NLRC denied petitioners' Motion for Reconsideration by Resolution of January 31, 2006, declaring that:
As the Honorable Commission is well aware, 25 July 2005 was declared a special non-working holiday. Thus, the filing by the Respondents-Appellants of their Memorandum on Appeal on the next working day, 26 July 2005, was timely and indubitably within the reglementary period.[10] (Underscoring supplied)
x x x [T]he appeal was filed out of time based on the Registry Return Receipt returned by the Post Office to this Commission, which forms part of the records of the case showing that a copy of the decision was received by respondents['] counsel on July 12, 2005, and not on July 13, 2005 as alleged in respondents' Motion for Reconsideration. The certification of Ms. Emily A. Gianan of the Makati Central Post office cannot invalidate the same official Registry Return Receipt that the very same post office sent back to this Commission showing the date of receipt by respondents['] counsel as July 12, 2005 on the face thereof.[11] (Emphasis and underscoring supplied)Petitioners thereupon filed a Petition for Certiorari before the Court of Appeals,[12] their counsel alleging that:
x x x Upon being confronted with the registry return card after the denial of Petitioners' Motion for Reconsideration by Public Respondent, Ms. Cantalopez [of the office of petitioners' counsel] realized that she had inadvertently and mistakenly entered the date "12" and not "13". She had actually received the decision of the Labor Arbiter on 13 July 2005 and had later that same day recorded that date accurately on the undersigned's copy of the Decision and in an "incoming" logbook, along with other incoming correspondences addressed to the undersigned law firm, before routing these to the appropriate attorney's, as is the Firm's standard practice and internal operating procedure. This may be considered as akin to a mere typographical error and should not be given the extreme punishment of dismissal of Petitioner's Appeal. x x x[13] (Underscoring supplied)Attached to the petition was the affidavit of Cantalopez of the office of petitioners' counsel and a copy of the pertinent page of the logbook of the same office[14] reflecting the receipt on July 13, 2005 of the Labor Arbiter's decision.
WHETHER A TOTALLY NEW BOARD RESOLUTION AUTHORIZING A CORPORATE OFFICER TO SIGN THE VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING IS SPECIFICALLY REQUIRED IN THE FILING OF A PETITION FOR REVIEW ON CERTIORARI UNDER RULE 65, BEFORE THE COURT OF APPEALS, EVEN IF A PREVIOUS BOARD RESOLUTION HAD ALREADY BEEN ISSUED IN FAVOR OF THE VERY SAME CORPORATE OFFICER AUTHORIZING HIM TO SIGN FOR AND IN BEHALF OF THE COMPANY "AT ANY STAGE" OF THE CASE.[19]Annexed to the petition is a Secretary's Certificate attesting to the conduct of a special meeting of the Board of Directors of petitioner NYK-Fil Ship Management, Inc. in which said petitioner "is now ratifying the actions of its Vice President Rañeses and submit such ratification to this Honorable Supreme Court."[20]
Respecting petitioners' argument that a company-designated physician declared respondent fit to resume sea duties, the right of a seafarer to seek a second opinion is recognized by the POEA Standard Employment Contract of 2000, the CBA governing the relationship between petitioners and respondent, and jurisprudence.I
WHETHER THE COMPLAINANT-APPELLEE IS ENTITLED TO DISABILITY BENEFITS, DESPITE THE FACT THAT THE COMPANY-DESIGNATED PHYSICIAN HAD ASSESSED HIM AS FIT TO RESUME SEA DUTIES.II
WHETHER THE COMPLAINANT-APPELLEE IS ENTITLED TO DISABILITY BENEFITS, DESPITE THE FACT THAT HIS ILLNESS OR INJURY IS NOT WORK-RELATED.III
WHETHER THE COMPLAINANT-APPELLEE IS ENTITLED TO DISABILITY BENEFITS, DESPITE THE FACT THAT HIS ILLNESS OR INJURY WAS NOT CAUSED BY AN ACCIDENT.IV
WHETHER COMPLAINANT-APPELLEE IS ENTITLED TO ATTORNEY'S FEES.[27]
The liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contract are as follows:This provision substantially incorporates the 1996 POEA Standard Employment Contract. Passing on the 1996 POEA Standard Employment Contract, this Court held that "[w]hile it is the company-designated physician who must declare that the seaman suffers a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion," hence, the Contract "recognizes the prerogative of the seafarer to request a second opinion and, for this purpose, to consult a physician of his choice."[28]
x x x x
- Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician but in no case shall this period exceed one hundred twenty (120) days.
For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor's decision shall be final and binding on both parties. (Emphasis and underscoring supplied)
SECTION 2. The disability suffered by the Seafarer shall be determined by a doctor appointed by the Company, and the Company shall provide disability compensation to the Seafarer in accordance with the percentage specified in the table below which is appropriate to this disability.From the following findings of respondent's physician, respondent is entitled to the benefits under the POEA Standard Employment Contract of 2000:
x x x x
SECTION 5. If a doctor appointed by the Union disagrees with the assessment of the Company doctor in SECTION 2, 3, or 4, a third doctor shall be mutually agreed between the Company and the Union, and the decision of this doctor shall be binding on both parties.[29]
IMPRESSION:Petitioners argue, however, that respondent's injury or illness is not work-related.[31] They rely on their designated physician's Reply to Medical Query, stating that respondent's conditions could also be attributed to age, genetics, weight, bone diseases, infections, and unknown factors.[32] They also call attention to Article XXI, Section 1 of the CBA which requires that disability be the result of an accident to be compensable.[33]Lumbar spondylopathy
Lumbar disc protrusion, L5-S1
Mr. Talavera's back pain has improved since his physical therapy. However, he still experiences pain and discomfort with exertion. He also now has started to complain of numbness that radiates down his thighs. His diagnostic tests are significant for degenerative changes and disc protrusion which are conditions due to wear and tear. That is, with more exposure to activities producing back stress, more injuries, and disability are to be expected. He has lost his pre-injury capacity, and I now recommend a partial permanent disability with Grade 8 Impediment based on the POEA contract. He is UNFIT for further sea duties.
x x x x
Degenerative disc disease is a wear and tear condition and is associated with degenerative changes in the articular cartilage. In the vertebral column, the fact joints are involved. A single episode of trauma may not initially be significant, but repeated trauma, such as excessive and strenuous physical activities may play a role.
Through degeneration, wear and tear or trauma, the annulus fibrosus containing the soft disc material (nucleus pulposus) may tear. This results in protrusion of the disc or even extrusion of disc material into the spinal canal or neural foramen. In addition, the nerve fibers of the affected root are also compressed and this situation leads to radiculopathy in the appropriate muscles. When the nerve roots become compressed, the herniated disc becomes significant. The most common complaint in patients with a herniated disc is that of severe low back pain developing immediately or within a few hours after an injury.
The mainstay of therapy for a herniated lumbar disc is conservative treatment, that is, nonsurgical. The mechanism of injury is often an episode of trauma or a continued mechanical stress of postural or occupational type. Therefore, torsional stresses on the back, and activities such as lifting and repetitive bending should be avoided. The more these patients do, the more they hurt.
Prolonged relief is less likely if no permanent modification in the patient's activities is made. Over time, as the patient resumes his normal work of increased loading, twisting, or bending and extension of the back, the patient exposes himself to dangers of enhancing the herniated disc to a more severe form.
Mr. Talavera should therefore refrain from activities producing torsional stress on the back and those that require repetitive bending and lifting. His symptoms are also heightened by prolonged sitting and standing. His functional capacity has diminished making it unsafe for him to work at his previous occupation. He is UNFIT to resume his sea duties.[30] (Emphasis in the original; underscoring supplied)
SECTION 1: A Seafarer who suffers permanent disability as a result of an accident, regardless of fault but excluding injuries caused by a Seafarer's willful act, whilst in the employment of the Company, including accidents occurring while traveling to or from the Ship, and whose ability to work is reduced as a result thereof, shall in addition to sick pay, be entitled to compensation according to the provisions of the Agreement. The copy/ies of the medical certificate and other relevant medical reports shall be made available by the Company to the Seafarer,[34]disability must be the result of an accident to be compensable.
x x x xrespondent had a rating above AB and that his disability was assessed at 50% or more under Appendix "B" of the CBA to merit the award of 100% compensation or $80,000 disability benefit and 10% thereof or $8,000 attorney's fees.
SECTION 3: Permanent Medical Unfitness - A Seafarer whose disability, in accordance with SECTION 1, is assessed at 50% or more under the attached APPENDIX B shall, for the purpose of this section be regarded as permanently unfit for further sea service in any capacity and entitled to 100% compensation, i.e. US$80,000 for officers and ratings above AB and US$60,000 for ratings, AB and below. Furthermore, any Seafarer assessed at less than 50% disability under the Contract but certified as permanently unfit for further sea service in any capacity by the Company doctor, shall also be entitled to 100% compensation[35] (Underscoring supplied),
x x x Compensability of an ailment does not depend on whether the injury or disease was pre-existing at the time of the employment but rather if the disease or injury is work-related or aggravated his condition. It is indeed safe to presume that, at the very least, the arduous nature of Hormicillada's employment had contributed to the aggravation of his injury, if indeed it was pre-existing at the time of his employment. Therefore, it is but just that he be duly compensated for it. It is not necessary, in order for an employee to recover compensation, that he must have been in perfect condition or health at the time he received the injury, or that he be free from disease. Every workman brings with him to his employment certain infirmities, and while the employer is not the insurer of the health of his employees, he takes them as he finds them, and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal, healthy person.[40] (Underscoring, emphasis, and italics supplied)In the case at bar, a reasonable connection between the respondent's injuries and the nature of his job has been established. Thus, as in the above cited case, it is safe to presume that the arduous nature of the respondent's job caused the respondent's illness or at least aggravated any pre-existing condition he might have had, and is thus work-related.
Complainant Talavera as Fitter performed repair and maintenance works, like hydraulic line return and other supply lines of the vessel; he did all the welding works and assist[ed] the First and Second Engineer during overhauling works of generators, engines and others [sic] engineering works as directed by lifting, carrying, pushing, pulling and moving heavy equipment and materials and constantly performed overtime works because the ship was old and always repair jobs are almost anywhere inside the vessel. He found himself with very few hours rest period.Undoubtedly then, respondent is, under the 2000 POEA Standard Employment Contract, entitled to compensation. His disability benefit, on account of the priorly stated partial permanent disability with Grade 8 Impediment based on the 2000 POEA Standard Employment Contract, computed in accordance with Section 20 (B) (6)[48] vis a vis Section 32[49] of the 2000 Standard Employment Contract, thus:
On several occasions due to his excessive arduous and stressful, both physical and mental works, he felt slight pains in his back and other parts of his body, [b]ut ignored the same due to the demands of his works and because his superiors are very strict with regards to [the] time table in a given task.[47] (Underscoring supplied)
US$50,000 x 33.59%amounts to US$16,795. The attorney's fees awarded by the labor arbiter "equivalent to ten percent (10%) of the judgment award"[50] is thus reduced to US$1,679.50.
Impediment Grade | | | Impediment |
1 | US$50,000 | x | 120.00% |
2 | " | x | 88.81% |
3 | " | x | 78.36% |
4 | " | x | 68.66% |
5 | " | x | 58.96% |
6 | " | x | 50.00% |
7 | " | x | 41.80% |
8 | " | x | 33.59% |
9 | " | x | 26.12% |
10 | " | x | 14.93% |
11 | " | x | 10.45% |
12 | " | x | 6.72% |
13 | " | x | 6.72% |
14 | " | x | 3.74% |