770 PHIL. 50
DEL CASTILLO, J.:
The low back pain intensity is not commensurate with the alleged symptoms of back pain so that a Provocative Discography is recommended and the schedule will follow as the operating room right now is fully book [sic].
Likewise an incidental note of a probable small cyst in the left kidney was noted. Since this is only an incidental finding, we would need your approval to evaluate this.[21]
Finding: There is midposterior Grade 1 annular tear with contrast medium leakage more to the left.
CONCLUSION: ELICITED AREAS ARE NOT CONCORDANT WITH USUAL PAIN BASED ON PATIENT'S EXPERIENCE.[23]
Objective Findings:Tenderness over the loose paralumbar muscles.
Truncal mobility restricted.
Small Cyst in the left kidney.
Assessment:Beginning Disk Dessication, L5S1Urology evaluated the small kidney cyst and opined that it will be observed as it is small and no impairment of kidney function is noted.
Small Cyst, Left
Provocative Discography was done on 26 July 2007 and showed leakage of contrast material at the midposterior aspect of the disk more towards the left thru a mild posterior annular tear. It was opined by Interventional Radiology that the pain complained of is not commensurate with the Discography.
Plans:
As the pain is not commensurate with the discography, personality reasons should be evaluated to rule out malingering is for your approval the form of [sic] Minnesota Multiphasic Personality Test. Approximate cost is Phpl0,000.00.[25]
The MMPI-2 Test provides a number of validity indices that are designed to provide an assessment of factors that could distort the results of testing. Such factors could include failure to complete test items properly, carelessness, reading difficulties, confusion, exaggeration, malingering or defensiveness.
During the interview phase, he was highly defensive finishing the test in more than 5 hours which is normally completed within 1 1/2 hours. He expressed doubts as to whether his injury or back pain will be cured doubting about his capacity and fitness to return to work. He already approached an attorney for disability claims and he is expecting a large sum of money from his claim. According to him, he was informed and-encouraged by the ship's "Master" on board regarding disability benefits.
The test showed that he tried to create a favorable impression of himself by not being honest in responding to the items. He reported a number of vague physical complaints and the development of physical problems occur when he is under stress. The medical history is characterized by excessive and vague physical complaints, weakness and pain. He tends to rely on hysterical defenses or exaggeration in the face of conflict. The test also showed Mr. Jaleco converting psychological conflict into physical complaints.
Based on the test protocol and interview, there are indicators that Mr. Jaleco is malingering and exaggerating hi [sic] symptoms. The essential feature is the intentional production of exaggerated physical symptoms motivated by external incentives - obtaining financial compensation and avoiding work.[28]
Subjective Complaints:
Complained of persistence of back pains
Objective Findings:
- Slightly spastic paraspinal muscles
- Truncal mobility functional
- Straight leg raising test normal
- Personality test (MMPI) indicates malingering and exaggeration of symptoms
Assessment:
Mild Disc Dessication, L5S1
Plans:
Physical therapy
If a disability is to be assessed now, a disability grade of 11 [would be obtained] based on the POEA Contract, Chest-Trunk-Spine #6 - Slight Rigidity or 1/3 loss of motion or lifting power of the trunk.[30]
Physical Examination:
There is no tenderness elicited when pressing on the left buttock. Slight tenderness and radiating pain was noted when the L5-S1 facet joints were pressed.
Assessment;
Sacro-iliitis, left and Bilateral facet joint arthropathy, L5-S1
Plan:
Local anesthesia injection into the left sacro-iliac joint to determine significance of the sacro-ilitis. If there is a slight improvement or complete improvement, then the sacro-iliac joint will be injected with steroids and long-acting local anesthesia. Then bilateral facet joint injections at L4-5 and L5-S1 will be performed on the same day.[32]
This 37-year-old seaman was repatriated here last May 2007, because of low back pain after carrying a heavy load while on board a ship. He was first seen at St. Luke's Medical Center when he was repatriated x x x and has undergone an epidural shot for his low back pain. His MRI plates show no significant disc protrusion that might be impinging on the nerve and his EMG NCV results were also normal. However he continuous [sic] to have low back pain whenever he would walk for long distances and whenever he would sit for long periods. He claims that his pain is actually in the area of the sacroiliac joint radiating down the buttock area and posterior to the thigh when this would occur.
He was referred to Dr. Ramon Santos Ocampo to look for the pain generator and injection of the Facet Joint and the Sacroiliac Joint of the Lumbar Spine were done. After the procedure the pain was relieved, however after three weeks the pain recurred.
Because of the recurrence of the pain and considering the nature of his job as a seaman, I told him that it would be impossible for him to return to his previous work duties. I would therefore declare him not fit for duty.[34]
Examination of the sagittal imaging demonstrates normal alignment of the vertebral bodies. The lumbar curvature is maintained. The conus medullaris is seen to be normal and ends at T12-L1 level. No abnormal signal is seen within the conus.
Focal T1W/T2W hyperintensity is noted in the anterosuperior corner of the L3 vertebral body. There is also a Tl W/T2W hyperintense focus in the L5 vertebral body. Examination of the intervertebral disc reveals no signal abnormality. No paraspinal or intraspinal mass noted.
T12-L1: No evidence of disc bulge or herniation.
LI-2: No evidence of disc bulge or herniation.
L2-3: No evidence of disc bulge or herniation.
L3-4: No evidence of disc bulge or herniation.
L4-5: No evidence of disc bulge or herniation.
L5-S1: Focal left of central disc protrusion mildly abutting the ipsilateral traversing nerve root.
A 1.0 cm. cyst is noted in the superior pole of the left kidney.
IMPRESSION:
1. Degenerative osteitis, L3 vertebral body
2. L5 vertebral body hemangioma
3. Focal left of central disc protrusion mildly abutting the ipsilateral traversing nerve root, L5-S1.
4. Above findings are generally unchanged from previous study.
5. Left renal cyst[35]
The patient is here today with his new MRI results showing a disk protrusion at the level of L5-S1 with [sic] mildly abutting the ipsilateral traversing nerve root. I have already given this patient a rating of grade 8 with a moderate rigidity or total loss of motion or lifting power of the trunk.
If I were to re-evaluate this, the functional capacity of the patient is actually more severe than this grading. However, the next grading which is grade 6 indicates or points to a fracture of the dorsal or lumbar spine which the patient does not have. However, the severity of his symptom is almost equal to a grade 6 with severe or total rigidity or total loss of lifting power of heavy objects.
In my opinion, despite the absence of a fracture of the dorsal lumbar spine, I will still give this patient a rating of grade 6 in terms of pain and affectation of the spinal cord.[37]
Upon his repatriation on 01 May 2007, complainant was assessed and medically treated by respondents' company-designated physician and the latter's team of specialists and was never declared fit to work.
Finding that complainant's illness is compensable, we now determine whether the same is permanent or total in order that he may claim full disability benefits.
xxxx
In the case at bar, x x x while respondents' company-designated doctor/s provided a disability rating for complainant's sustained injury, the former, nonetheless failed to make any declaration and/or assessment as to the latter's fitness for work and/or capability to render sea duty.
Indubitably, the failure of respondents' company-designated doctor/s to declare complainant's fitness for work reasonably infers a scheme to evade full payment of disability benefits to the complainant, by merely declaring complainant partially disabled with a Grade 6 Impediment assessment.
Verily, it was undisputed that despite continuous medical treatment, complainant continue[s] to suffer his ailment and the same remained uncured, until [the] present, which rendered him unable to work and earn income for his family.
As a result therefore of the injury he sustained while on board the vessel "ELSE MAERSK DENMARK", complainant was unable to work for more than 120 days that resulted in the impairment of his earning capacity.
xxxx
Hence, this Office rules that notwithstanding the medical assessment of respondents' company-designated doctors, jurisprudence dictates that complainant be entitled to permanent total disability benefits by reason of his continued medical condition that rendered him incapacitated for work for more than 120 days from the date he was medically repatriated x x x to the Philippines.
On the other hand, for lack of particulars, complainant's claim for medical expenses and for non-payment of wages, overtime pay, vacation leave and sick leave pay, the same could not be reasonably granted under the circumstances for lack of factual basis with which to make an appropriate award.
xxxx
Similarly, for lack of particulars as to complainant's claim for damages, the same could not be reasonably granted under the circumstances for lack of factual basis with which to make an appropriate award.
xxxx
WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents, jointly and severally, to pay the complainant total disability benefits corresponding the [sic] schedule of rates provided for under the CBA between the AMOSUP and respondent manning agency.
Respondents are likewise ordered to pay respondents [sic] attorney's fees equivalent to ten (10%) percent of the total judgment award.
The computation unit of this Office is hereby directed to compute the monetary award of the complainant which forms part of this decision.[46]
Other claims are DISMISSED.
SO ORDERED.[47]
The instant appeal is impressed with merit.
At the outset, it should be pointed out that had the parties in the instant case complied strictly with the provisions of the POEA Standard Employment Contract, particularly on the appointment of a third physician in case of disagreement, a lot of controversy would have been averted, x x x
xxxx
We are thus compelled to evaluate the divergent opinions of the company-designated physicians and complainant's private physician.
xxxx
As can therefore be seen from the last MRI of complainant, the findings of the latter are basically unchanged. However, complainant's physician issued a disability grading of Grade 6 "in terms of pain and affectation of the spinal cord," observing that the severity of complainant's symptom is equivalent to said grading.
A close perusal of the above finding of Dr. Raymundo shows that there is "severe or total rigidity or total loss of lifting power of heavy objects" based on complainant's symptom, that is, his pain. This however has been put in issue by the company-designated physician, who earlier observed that:"Provocative Discography was done on 26 July 2007 and showed leakage of contrast material in the midposterior aspect of the disk more towards the left thru a mild posterior annular tear. It was opined by Interventional Radiology that the pain complained of is not commensurate with the Discography."
This resulted in the following recommendation:As the pain is not commensurate with the discography, personality reasons should be evaluated to rule out malingering is for your approval the form of Minnesota Multiphasic Personality Test [sic]. Approximate cost is Php 10,000.00."
And the findings of said Minnesota Multiphasic Personality Test shows that:Based on the test protocol and interview, there are indicators that Mr. Jaleco is malingering and exaggerating hi [sic] symptoms. The essential feature is the intentional production of exaggerated physical symptoms motivated by external tendencies - obtaining financial compensation and avoiding work."
As the company-designated physician has opined that complainant is malingering and exaggerating his pain, the same pain made the basis for the disability grading of Dr. Raymundo, it was incumbent upon complainant to refute the same. He has failed to do so.
xxxx
We therefore uphold the disability grading of Grade 11 as opined by the company-designated physician, which amounts to US$7,465.00 corresponding to 14.93% disability as provided for in the POEA Standard Employment Contract.
Likewise, the mere fact that complainant was no longer able to return to work as a seaman, by itself, is no ground to automatically entitle him to Grade 1 permanent total disability benefits, x x x.
xxxx
As the instant complaint is clearly unfounded, complainant is not entitled to any attorney's fees.
WHEREFORE, premises considered, the appealed Decision is hereby MODIFIED, in that complainant Rommel Rene O. Jaleco is entitled only to disability benefits of US$7,465.00, corresponding to 14.93% disability (Grade 11) as provided for in the POEA Standard Employment Contract. The award of 10% attorney's fees is DELETED for lack of legal basis.
SO ORDERED.[49]
The petition is meritorious.
In this case, Dr. Alegre based his assessment of petitioner Jaleco's disability at Grade 11 on the spine surgeon's evaluation conducted on July 9, 2007 finding that the low back pain intensity was not commensurate to the alleged symptoms of back pain, the opinion of the Interventional Radiology that the pain complained of was not commensurate with the Provocative Discography performed on July 26, 2007 which showed "leakage of contrast material in the midposterior aspect of the disk more towards the left thru a mild posterior annular tear", and the Minnesota Multiphasic Personality Inventory - 2 Test (MMPI-2) which found petitioner Jaleco to be malingering and intentionally exaggerating his physical symptoms to obtain financial compensation and avoid work.
On the other hand, Dr. Raymundo not only assessed petitioner Jaleco's disability at Grade 6 or Moderate Rigidity or two thirds (%) loss of motion or lifting power of the trunk, but also declared him to be unfit for duty because of the recurrence of pain and the nature of his job as a seaman.x x x x x x x x x
The law does not require that the illness should be incurable. What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability.[53]
Dr. Alegre may have referred petitioner Jaleco's case to the proper medical specialist, monitored the latter's case during its progress and issued a certification based on the medical records available and the results obtained. However, there is no showing that he made a categorical declaration as regards petitioner Jaleco's fitness to resume sea-duty.
The POEA Standard Employment Contract for Seamen is designed primarily for the protection and benefit of Filipino seaman [sic] in the pursuit of their employment on board ocean-going vessels. Its provisions must, therefore, be construed and applied fairly, reasonably and liberally in their favor. Only then can its beneficent provisions be fully carried into effect.
Hence, petitioner Jaleco is entitled to the US$60,000.00 for Impediment Grade 1 award.
As regards the award of attorney's fees, this Court finds that petitioner Jaleco is entitled to attorney's fees equivalent to ten percent (10%) of the monetary award.x x x x x x x x x
Petitioner Jaleco averred that as a registered member of AMOSUP, he is necessarily covered by the CBA (Ratings) between the AMOSUP-FIGWO-ITF and the Danish Shipowners Association. But there is no showing that he was able to prove by substantial evidence his positive assertions that he is a registered member of the said union and the said CBA is applicable to him in this case.x x x x x x x x x
Petitioner Jaleco invokes protection under the Consolidated Workers' Compensation Act of Denmark by merely quoting its pertinent provisions in his position paper, x x x
Foreign laws do not prove themselves in our courts. Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.
Besides, the snap on petitioner Jaleco's back was an injury sustained from carrying and pulling the heavy wires that allegedly got stuck and messed up everything during a mooring operation, which injury resulted in his disability. The injury cannot be said to be the result of an accident, that is, an unlooked for mishap, occurrence, or fortuitous event, because the injury resulted from the performance of a duty. Although petitioner Jaleco may not have expected the injury, yet, it is common knowledge that carrying heavy objects can cause back injury, as what happened in this case.x x x x x x x x x
Hence, the injury cannot be viewed as unusual under the circumstances, and is not synonymous with the term "accident" as defined above.
With respect to the award for moral and exemplary damages, there is no showing of bad faith or malice on the part of private respondents when they relied on Dr. Alegre's assessment of petitioner Jaleco's disability in denying the latter's claim.
Petitioner Jaleco's claim for actual damages was premised on his bare allegation that he was deprived of his sole source of livelihood as a consequence of his dismissal without due process, by private respondents in violation of the Labor Code and their failure and refusal to grant him the correct disability benefits. A party is entitled to adequate compensation only for such pecuniary loss actually suffered and duly proved. It is a basic rule that to recover actual damages, the amount of loss must not only be capable of proof but must actually be proven with a reasonable degree of certainty, premised upon competent proof or best evidence obtainable of the actual amount thereof.
WHEREFORE, premises considered, the petition is GRANTED. The Decision dated November 30, 2010 and Resolution dated February 28, 2011 of public respondent NLRC, First Division in NLRC NCR Case No. OFW(M) 12-17087-08 NLRC LAC No. OFW(M) 07-000539-10 are hereby REVERSED and SET ASIDE. Judgment is hereby rendered ordering private respondents, jointly and severally, to pay petitioner Jaleco US$60,000.00 as total permanent disability benefit and to pay him attorney's fees equivalent to ten percent (10%) of the total judgment award.
SO ORDERED.[54]
THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS, REVERSIBLE AND GROSS ERROR IN LAW BASED ON THE FOLLOWING GROUNDS:
- In granting disability benefits based on the erroneous application of the case of Crystal Shipping v. Natividad (G.R. No. 154798, October 20, 2005) and equally erroneous interpretation of the case of Jesus Vergara v. Hammonia Maritime Services, Inc. (G.R. No. 172933, October 6, 2008)
- In awarding attorney 's fees without legal and factual basis.[56]
If a disability is to be assessed now, a disability grade x x x 11 [would be obtained] based on the POEA Contract, Chest-Trunk-Spine #6 - Slight Rigidity or 1/3 loss of motion or lifting power of the trunk.[59]
We are confronted, once again, with the question of whose disability assessment should prevail in a maritime disability claim - the fit-to-work assessment of the company-designated physician or the contrary opinion of the seafarer's chosen physicians that he is no longer fit to work. A related question immediately follows - how are the conflicting assessments to be resolved?x x x x x x x x x
The POEA-SEC and the CBA govern the employment relationship between Dumadag and the petitioners. The two instruments are the law between them. They are bound by their terms and conditions, particularly in relation to this case, the mechanism prescribed to determine liability for a disability benefits claim. In Magsaysay Maritime Corp. v. Velasquez, the Court said: "The POEA Contract, of which the parties are both signatories, is the law between them and as such, its provisions bind both of them." Dumadag, however, pursued his claim without observing the laid-out procedure. He consulted physicians of his choice regarding his disability after Dr. Dacanay, the company-designated physician, issued her fit-to-work certification for him. There is nothing inherently wrong with the consultations as the POEA-SEC and the CBA allow him to seek a second opinion. The problem only arose when he pre-empted the mandated procedure by filing a complaint for permanent disability compensation on the strength of his chosen physicians' opinions, without referring the conflicting opinions to a third doctor for final determination.x x x x x x x x x
The filing of the complaint constituted a breach of Dumadag's contractual obligation to have the conflicting assessments of his disability referred to a third doctor for a binding opinion. The petitioners could not have possibly caused the non-referral to a third doctor because they were not aware that Dumadag secured separate independent opinions regarding his disability. Thus, the complaint should have been dismissed, for without a binding third opinion, the fit-to-work certification of the company-designated physician stands, pursuant to the POEA-SEC and the CBA. x x xx x x x x x x x x
Whatever his reasons might have been, Dumadag's disregard of the conflict-resolution procedure under the POEA-SEC and the CBA cannot and should not be tolerated and allowed to stand, lest it encourage a similar defiance. We stress in this respect that we have yet to come across a case where the parties referred conflicting assessments of a seafarer's disability to a third doctor since the procedure was introduced by the POEA-SEC in 2000 - whether the Court's ruling in a particular case upheld the assessment of the company-designated physician, as in Magsaysay Maritime Corporation v. National Labor Relations Commission (Second Division) and similar other cases, or sustained the opinion of the seafarer's chosen physician as in HFS Philippines, Inc. v. Filar, cited by the CA, and other cases similarly resolved. The third-doctor-referral provision of the POEA-SEC, it appears to us, has been honored more in the breach than in the compliance. This is unfortunate considering that the provision is intended to settle disability claims voluntarily at the parties' level where the claims can be resolved more speedily than if they were brought to court.
Given the circumstances under which Dumadag pursued his claim, especially the fact that he caused the non-referral to a third doctor, Dr. Dacanay's fit-to-work certification must be upheld. In Santiago v. Pacbasin Ship Management, Inc., the Court declared: "[t]here was no agreement on a third doctor who shall examine him anew and whose finding shall be final and binding, x x x [T]his Court is left without choice but to uphold the certification made by Dr. Lim with respect to Santiago's disability." (Emphasis and underscoring supplied)
FINDINGS:[13] Id. at 103.
L1-L2 down to L4-L5 intervertebral disks are normal. Disk materials are within normal confines. The spinal and neural canals are adequate.
L5-S1 intervertebral disk shows mild decrease in signal on the FSE T2-weighted study.
Negative for frank disk herniation. The spinal and neural canals are adequate.
Conus medullaris ends at LI. Cauda equine is not thickened.
Vertebral height and marrow signals are preserved. There are few Schmorf s nodes seen.
Normal lordotic curvature of the spine is maintained. Clear paravertebral spaces.
Incidental note of probable small cyst in the left kidney.
IMPRESSION:
BEGINNING DISK DESICCATION, L5-S1. Id. at 166.
An electromyogram (EMG) measures the electrical activity of muscles at rest and during contraction. Nerve conduction studies measure how well and how fast the nerves can send electrical signals.
Nerves control the muscles in the body with electrical signals called impulses. These impulses make the muscles react in specific ways. Nerve and muscle problems cause the muscles to react in abnormal ways.
If you have leg pain or numbness, you may have these tests to find out how much your nerves are being affected. These tests check how well your spinal nerves and the nerves in your arms and legs are working. Why It Is Done An EMG is done to:
- Find diseases that damage muscle tissue, nerves, or the junctions between nerve and muscle. These problems may include a herniated disc, amyotrophic lateral sclerosis (ALS), or myasthenia gravis (MG).
- Find the cause of weakness, paralysis, or muscle twitching. Problems in a muscle, the nerves supplying a muscle, the spinal cord, or the area of the brain that controls a muscle can cause these symptoms. The EMG does not show brain or spinal cord diseases.
A nerve conduction study is done to:
- Find damage to the peripheral nervous system, which includes all the nerves that lead away from the brain and spinal cord and the smaller nerves that branch out from those nerves. This test is often used to help find nerve problems such as carpal tunnel syndrome or Guillain-Barre syndrome.
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.[42] Rollo, pp. 186-194.
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.