548 Phil. 660
CORONA, J.:
WHEREFORE, the claim of disability benefit is hereby found meritorious, and thereby, the respondents are hereby directed to pay the complainant US$7,465.00, or its peso equivalent. However, the other claims are hereby denied for lack of merit.According to the labor arbiter, in the POEA-prescribed contract's "Schedule of Disability or Impediment for Injuries Suffered on Lower Extremities,"[7] the closest to private respondent's ailment was:
SO ORDERED.[6]
18. Complete immobility of an ankle joint in normal position — Grade 11.He emphasized that despite the medical opinions of other doctors, only Dr. Manalang gave an impediment grade for private respondent's injury. Such impediment grade[8] happened to be the same grade for the injury he found closest to private respondent's condition.
WHEREFORE, premises considered, the decision under review is hereby SET ASIDE, and another entered in its stead, declaring complainant's disability as permanent and total.In so ruling, the NLRC considered the medical findings of Dr. Norberto Meriales of the Philippine General Hospital (PGH)/Medical Center Manila. Dr. Meriales opined that, with or without additional medical treatment on private respondent's foot, a return to his previous work as a seaman was no longer possible. Consequently, private respondent's refusal to undergo a "triple arthrodesis" operation on his foot should not defeat the merits of his claim. Even if he underwent the surgery, there was no guarantee that it would alleviate private respondent's pain, bring back the full mobility and use of his foot and ability to work as a seaman. The operation was intended merely to relieve him of pain.
Accordingly, respondents are directed to pay the complainant US$60,000.00 or its peso equivalent. All other claims are DISMISSED for lack of merit.
SO ORDERED.[9]
x x x. It is my opinion xxx that results of these surgeries might not live up to the expectations of Mr. Dee. As it is, patient is already frustrated with the degree of immobility of his hind and midfoot. Fusion is going to compromise this further. Even if the surgeries are designed to lessen the pain of his foot, results are still undeniably variable. Patient is very much aware of the consequences of having corrective foot surgery or none at all. It is for the patient to finally decide to undergo such an elective procedure when he feels that its benefit outweigh its other limitations. Nevertheless, patient will never be able to attain the level of activity that he could perform as a seaman. It would be best for him to seek an occupation that would not entail heavy manual work and prolonged ambulation.[10]On this basis, the NLRC ruled that private respondent's disability was permanent and total in character, warranting a US$60,000 award.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVERSING THE DECISION OF THE LABOR ARBITER CONSIDERING THAT:There is no merit in the petition.
(A) THE LATTER STUCK TO THIS HONORABLE COURT'S PRECEDENT-SETTING RULING IN GERMAN MARINE AGENCIES V. NLRC,[14] THAT IT IS THE COMPANY-DESIGNATED PHYSICIAN WHO MUST ASSESS THE NATURE AND EXTENT OF DISABILITY OF AN INJURED SEAFARER.
(B) THE LATTER APPLIED THE PROVISIONS OF THE POEA-PRESCRIBED STANDARD EMPLOYMENT CONTRACT; and
(C) THE COMPLAINANT'S INJURY WAS CONFINED ONLY TO HIS LEFT FOOT, AND THUS HIS DISABILITY IS NOT TOTAL, BUT ONLY PARTIAL.
The NLRC could hardly be accused of misappreciating the facts of the case, as it is undisputed that the private respondent sustained his injury while serving on board the M/V Castor belonging to petitioner Seagiant Management Co., Ltd., and that the said injury was compensable. Nor could the NLRC be accused of misapprehending the extent of the private respondent's injury as in making its conclusions, the NLRC referred to matters of evidence appearing on record, after using its own reasoning and cognitive powers. We see that the NLRC gave weight to the observations of Dr. Norberto Meriales that the private respondent, whether operated on or not, will not be able to perform or be hired for his previous work as a seaman, and no grave abuse of discretion could be gleaned from such fact. The NLRC also relied on the observations of Dr. Rafael Bundoc of the PGH, which point out that even if private respondent is allowed surgeries to lessen his pain, he will never be able to attain the level of activity that he could perform as a seaman.Petitioners' insistence that the NLRC committed grave abuse of discretion when it did not follow this court's ruling in German Marine Agencies, Inc. is unconvincing. Nowhere in that case did we hold that the company-designated physician's assessment of the nature and extent of a seaman's disability is final and conclusive on the employer company and the seafarer-claimant. While it is the company-designated physician who must declare that the seaman suffered a permanent disability during employment,[18] it does not deprive the seafarer of his right to seek a second opinion.
The NLRC also did not misconstrue or misapply the legal principles it had cited in resolving the appeal before it. It is in accord with judicious reasoning for the NLRC to cite the rule that a claimant's disability should not be understood solely on its medical significance, but also on the real and actual effects of the injury to the claimant's right and opportunity to perform work and earn a living. In fine, private respondent's injury rendered him incapable of performing the same work or work of a similar nature as he was trained or accustomed to. It is only just that the remuneration paid to him at least approximates his loss.
Thus, it can not be said that the NLRC acted with wantonness or arbitrariness or in a despotic manner as its findings and conclusions are based on matters on record.[17]
Thus, the POEA Standard Employment Contract recognizes the prerogative of the seafarer to request a second opinion and, for this purpose, to consult a physician of his choice. In case of disagreement between the assessments of the company-designated physician and the seafarer's doctor of choice, they may agree to refer the seafarer to a third doctor. In such a case, the third doctor's assessment shall be final and binding on both the employer and the seafarer.x x x x x x x x x
B. 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 x x x x x
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 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 supplied)
This is in reference to Seaman/AB Jaycee Dee who was repatriated due to fractured left foot.Significantly, Dr. Manalang's medical findings did not differ from those of the other doctors consulted by private respondent. Essentially, he shared their opinion that the "triple arthrodesis" operation could not guarantee the restoration of private respondent's former physical condition. His pronouncement that
Patient was seen and re-evaluated by our Orthopedic Surgeon. He was diagnosed to have Traumatic Arthritis Subtalar joint (Talonavicular Talocalcaneal and Calcaneocuboid joint) left foot as a result of previous traumatic injury (Talar and Calcaneal Fracture with Alonavicular Dislocation).
Presently, patient has severe pain over the subtalar joint with difficulty in weight bearing on the left foot while ambulating. The proposed Triple Arthrodesis, which might eliminate, relieve and stabilized left foot for functional weight bearing and ambulation was rejected by the seaman.
Although there is no guarantee that he will be able to return to his previous strenuous work, he might be able to walk for activity of daily living with a less painful or more comfortable left foot.
Based [on] these findings, we are giving Disability Grade 11 for Mr. Dee ($50,0000.00 x 14.93%) = $7465.00).[19] (emphasis ours)
all that the operation might do is to enable private respondent to walk for daily activities with a less painful or more comfortable left footinsinuated that private respondent's disability was permanent. His medical opinion could be safely interpreted to mean that, as a result of the injury, private respondent would no longer be able to perform strenuous activities such as the rigorous duties of a seaman.