HERNANDO, J.:
1. November 17, 2014[11]In the Medical Report dated March 16, 2015,[16] Dr. Sañez and Dr. De Guzman made an interim assessment of Disability Grade 12 with the following findings:
2. December 2, 2014[12]
3. January 12, 2015[13]
4. February 5, 2015[14]
5. March 16, 2015[15]
At present, patient started to engage in his regular activities and simulate his work on board as an able-bodied seaman.On March 26, 2015, Allan, through counsel, sent a letter[18] to Dr. Sañez asking if further treatment was still needed beyond the 120-day period after his repatriation, considering that he was still under persistent pain. He requested a response from ShiptoShore before April 7, 2015, but his query was left unanswered.[19]
However, patient still complains of pain graded 5/10 on certain movements of the right shoulder and prolonged carrying of loads, which spontaneously resolves with rest.
x x x x
As previously advised, projected return to full load capacity is anywhere from 4 to 6 months post trauma event.
Patient will be further observed as he was advised to continue with his usual activities while using the prescribed medicated patch.
INTERIM DISABILITY GRADE: 12 – collarbone fracture, but able to raise arm above shoulder level
Impression:
Fracture, closed, complete, displaced, middle third of clavicle, radiographically healed.
The patient's medical condition is work-related.
Plan:
For re-evaluation with Orthopedic-Shoulder specialist tentative 13 April 2015.[17]
(Emphasis in the original)
ACCORDINGLY, the respondents Philippine Transmarine Carriers Inc. and Seaspan Crew Link [are] hereby ordered to pay complainant in solidum the amount of USD60,000.00 representing his disability benefit and; ten percent (10%) representing attorney's fees.Aggrieved, petitioners appealed[36] to the NLRC.
SO ORDERED.[35]
WHEREFORE, premises considered, the Appeal dated 18 February 2016 is DENIED. The assailed Decision dated 28 December 2015 is AFFIRMED.Discontented, petitioners elevated the matter to the CA.[39]
SO ORDERED.[38]
WHEREFORE, the foregoing considered, the Petition for Certiorari is DENIED. The Decision dated 30 May 2016 and Resolution dated 30 June 2016 of public respondent are AFFIRMED.Petitioners filed a Motion for Reconsideration,[42] which was later denied.[43]
SO ORDERED.[41]
SEC. 20. COMPENSATION AND BENEFITS. —In relation thereto, Section 2, Rule X of the Amended Rules on Employees' Compensation implementing Title II, Book IV of the Labor Code, provides:
A. 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:
x x x x
2. x x x 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.
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 fit 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.
x 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 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. In the course of the treatment, the seafarer shall also report regularly to the company-designated physician specifically on the dates as prescribed by the company-designated physician and agreed to by the seafarer. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.
If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer. The third doctor's decision shall be final and binding on both parties. (Emphasis supplied)
Sec. 2. Period of Entitlement. — (a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System. (Emphasis supplied)In Elburg Shipmanagement Phils., Inc. v. Quiogue,[46] the rules governing claims for total and permanent disability benefits are summarized as follows:
In summary, if there is a claim for total and permanent disability benefits by a seafarer, the following rules shall govern:In the case at bar, Allan was placed under the care of the company-designated doctors from October 2014 to March 2015. During this time, he underwent therapy and rehabilitation under the supervision of ShiptoShore's Orthopedic Shoulder Specialist. In fact, he had good callus formation and showed improvement from displaying a limited range of motion after his injury to showing full range motion during his January 2015 checkup.[48] By February, Allan was able to carry objects with his right upper extremity with level at one to two out of 10. He was scheduled for another re-evaluation with possible clearance on March 2, 2015. In the last Medical Report issued by the company-designated doctors dated March 16, 2015, Allan continued to show improvement but still continued to feel pain. Dr. Sañez reiterated that Allan's projected return to full load capacity would be four to six months from October. Dr. Sañez also gave Allan an interim assessment of "Disability Grade 12 - collarbone fracture, but able to raise arm above shoulder level" with a re-evaluation tentatively scheduled on April 13, 2015. It was also explicitly stated in the medical report that Allan will be "further observed as he was advised to continue with his usual activities while using the prescribed medicated patch." At this point, Allan's treatment already went beyond 120-day period, and the doctor's findings and schedule for re-evaluation clearly constitute a significant act that justified the extension of petitioner's treatment period to 240 days.[49]
1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (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
4. burden to prove that the company-designated physician has sufficient justification to extend the period; and
5. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.[47]
In C.F. Sharp Crew Management, Inc. v. Orbeta, We held that a seafarer commits medical abandonment when he fails to complete his treatment before the lapse of the 240-day period, which prevents the company physician from declaring him fit to work or assessing his disability. Section 20 (D) of the 2000 POEA-SEC provides that "[n]o compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or intentional breach of his duties. x x x" A seafarer is duty-bound to complete his medical treatment until declared fit to work or assessed with a permanent disability rating by the company-designated physician.In New Filipino Maritime Agencies, Inc. v. Despabeladeras,[55] We held:
In this case, after undergoing several tests, petitioner was placed under observation. Dr. Gonzales advised him to return for his medical clearance on October 23, 2009, or 71 days from his repatriation, but petitioner did not do so. He argues that he could still feel the symptoms of his ailment despite having been cleared by respondents' cardiologist from coronary arterial disease on October 15, 2009. Hence, he was prompted to consult another doctor. However, while indeed a seafarer has the right to seek the opinion of other doctors under Section 20 (B) (3) of the 2000 POEA-SEC, this is on the presumption that the company-designated physician had already issued a certification on his fitness or disability and he finds this disagreeable. As case law holds, the company-designated physician is expected to arrive at a definite assessment of the seafarer's fitness to work or to determine his disability within a period of 120 or 240 days from repatriation. The 120-day period applies if the duration of the seafarer's treatment does not exceed 120 days. On the other hand, the 240-day period applies in case the seafarer requires further medical treatment after the lapse of the initial 120-day period. In case the company-designated doctor failed to issue a declaration within the given periods, the seafarer is deemed totally and permanently disabled. When petitioner chose not to show up at the appointed date of consultation, effectively preventing Dr. Gonzales from making a fitness or disability assessment, he breached his duty under the 2000 POEA-SEC. Without any final assessment from the company-designated physician, petitioner's claim for permanent total disability benefits must fail.[54] (Citations omitted, emphasis supplied)
The CA even cited one of the instances enumerated in the case of C.F. Sharp Crew Management, Inc. v. Taok (C.F. Sharp Crew Management) when a seafarer may be allowed to pursue an action for permanent disability benefits. In the said case, the failure of the company-designated physician to issue a declaration as to a seafarer's fitness to engage in sea duty or disability even after the lapse of the 120-day period with no indication that further medical treatment would address his temporary total disability justified an extension of the period to 240 days. The citation, however, finds no application in this case, where the company-designated physician cannot be faulted for not issuing disability assessment or fit-to-work declaration. At that time, which was within the 240-day period, Michael was still undergoing treatment by the company doctors. The orthopedic surgeon noted that Michael's fracture was healing and there was greater probability of a fit for work declaration. After the lapse of 120 days, the treatment period was considered extended as Michael was advised to continue medical therapy to improve his condition to which he agreed. There was, thus, an indication that further therapy sessions would address his temporary disability. He was expected to return for his therapy session, but he failed to do so. Clearly, under the circumstances, the 240-day extension period was justified.Based on the foregoing, Allan breached his duty by not showing up on his scheduled April 13, 2015 appointment thereby effectively preventing Dr. Sañez from making a final disability assessment. Since Allan was still undergoing treatment by the company doctor and has been showing signs of improvement, and was even asked to come back for possible clearance, there was an indication that further treatment would address his temporary disability. This Court emphasizes that a temporary total disability only becomes permanent if the company-designated physician declares it to be so within the 120-day period, or 240-day period, provided the extension was justified in the latter case, or after the lapse of such periods, and no declaration is made by the company-designated physician.[57] The mere lapse of the 120/240-day period does not automatically entitle a seafarer to total and permanent disability benefits.
There being no assessment, Michael's condition cannot be considered a permanent total disability. Temporary total disability only becomes permanent when declared by the company physician within the period 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 permanent disability.[56]
In several cases, we held that the doctor who have had a personal knowledge of the actual medical condition, having closely, meticulously and regularly monitored and actually treated the seafarer's illness, is more qualified to assess the seafarer's disability. In Coastal Safeway Marine Services, Inc. v. Esguerra, the Court significantly brushed aside the probative weight of the medical certifications of the private physicians, which were based merely on vague diagnosis and general impressions. Similarly in Ruben D. Andrada v. Agemar Manning Agency, Inc., et al., the Court accorded greater weight to the assessments of the company-designated physician and the consulting medical specialist which resulted from an extensive examination, monitoring and treatment of the seafarer's condition, in contrast with the recommendation of the private physician which was "based only on a single medical report x x x [outlining] the alleged findings and medical history x x x obtained after x x x [one examination]."[59]In the case at bar, a careful review of the medical reports of Allan's physicians of choice reveals that the findings were merely based on general impressions after conducting a single physical examination. In fact, no other tests were conducted to ascertain Allan's condition. This is in stark contrast with the various medical reports issued by Dr. Sañez, who has personal knowledge of Allan's actual medical condition, having closely, meticulously, and regularly monitored it, and actually treated Allan's illness from October 2014 to March 2015. Moreover, Dr. Catapang Jr. and Dr. Pimentel did not issue any disability grading.
x x x [C]onservative treatment was applied by immobilization with clavicular strap. He was referred to Rehab Section for physiotherapy but still complains of on and off pain of the right shoulder.On the other hand, Dr. Pimentel's report states:
Physical examination revealed a well-developed, well-nourished ambulatory patient. Pertinent physical examination revealed; limitation of movement, shoulder abduction is limited at the right shoulder, deformity noted at the right collar bone. Patient has difficulty of performing exercises of the right extremity for long periods of time. He cannot lift heavy objects with his right hand.x x x x
Mr. Tena-e continues to complain and suffer from shoulder pain, right. The pain is worse by prolonged use of his right extremity. He has difficulty in doing simple mechanical work. He has lost his pre-injury capacity and us UNFIT to work back at his previous occupation.
Result of the x-ray of the right clavicle done at St. Luke's Medical Center dated 03 Feb 2015:
Impression:
Marked overriding and inferior displacement of the distal fractured fragment with periosteal callus formation, right clavicular mid shaft.
x x x x
Mr. Tena-e sustained a disabling injury in his dominant arm. With his present condition, he will not be able to perform his pre-injury work, because of the physical demands it entails. He is UNFIT to resume his duties as a seaman.[60] (Emphasis in the original, underscoring supplied)
He had his monthly follow up with his attending physician [wherein] monthly xrays were done. Neither physical therapy nor medications were given to the patient. In March of 2015, he was informed to report at his office for instructions if he would still continue with his medical follow up.Under these circumstances, the assessment of Dr. Sañez should be given more credence for having been arrived at after months of medical attendance and diagnosis, compared with the assessment of Allan's private physicians that was issued after a single examination and based on Allan's existing medical records. In other words, Dr. Sañez is more qualified to assess Allan's disability.
At present he still has shoulder pain aggravated by lifting activities. He cannot perform heavy lifting and overhead lifting.
Diagnostic test available to the patient is an x-ray done at St. Luke's dated February 3, 2015. Impression was marked overriding and inferior displacement of the distal fractured fragment with callus formation, right clavicle mid shafts.
Present physical examination of the patient reveals the following:
1. 4/5 muscle grade right shoulder muscles
2. Limited range of motion right shoulder on internal rotation
x x x x
x x x When he arrived in the Philippines no surgical nor medical intervention was done except for monthly x-rays. If surgery was not considered here in the Philippines, physical therapy could have helped in improving the shoulder range of motion and in strengthening the shoulder of his dominant extremity. These could have given him a better chance to regain his previous level of function and eventually for him to return to work.
x x x At present he cannot perform heavy lifting and overhead lifting which is part of his daily activities as a seafarer. He is not fit for sea duty with permanent disability.[61] (Emphasis supplied)