Seaman Law

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FIRST DIVISION

[G.R. No. 154798, October 20, 2005]

CRYSTAL SHIPPING, INC., and/or A/S STEIN LINE BERGEN,

Petitioners,

- versus -

DEO P. NATIVIDAD, Respondent.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

For review on certiorari are the Resolutions[1] dated July 2, 2002 and August 15, 2002 of the Court of Appeals in CA-G.R. SP No. 71293 which denied petitioners’ motion for extension of time to file a petition for certiorari and their motion for reconsideration, respectively.

Petitioner A/S Stein Line Bergen, through its local manning agent, petitioner Crystal Shipping, Inc., employed respondent Deo P. Natividad as Chief Mate of M/V Steinfighter for a period of ten months.[2] Within the contract period, respondent complained of coughing and hoarseness and was brought to shore for examination. He was diagnosed with “swelling neck and lymphatic glands right side in neck”, declared unfit for duty, and advised to see an ear-nose-throat specialist.[3] He was repatriated to Manila on August 18, 1998.

Shortly after his arrival, respondent was referred to ClinicoMed Inc., the company-designated clinic, for check-up and later thoroughly examined at the Manila Doctors Hospital. He was diagnosed with “papillary carcinoma, metastatic to lymphoid tissue consistent with thyroid primary” and “reactive hyperplasis, lymph node”. On September 11, 1998, he underwent a total thyroidectomy with radial neck dissection. After the operation, respondent developed chest complications and pleural effusion, and had to undergo a thoracenthesis operation. On the basis of all these, his attending physician diagnosed him permanently disabled with a grade 9 impediment, with grade 1 as the most serious.[4]

A second opinion by Marine Medical Services and Metropolitan Hospital attending physician, Dr. Robert D. Lim, likewise concurred that respondent was disabled with a grade 9 impediment.[5] Under the care of Dr. Lim, respondent underwent various treatments, one of which was the radioactive iodine therapy at the Philippine General Hospital. While his treatment with Dr. Lim was ongoing, respondent sought the opinion of Dr. Efren R. Vicaldo, who opined that he was totally and permanently disabled for labor with a grade 1 impediment.[6] On February 22, 1999, respondent underwent a whole body scan which revealed no trace of radio iodine on his body to indicate metastasis or residual thyroid tissue. The attending physician, Dr. Wilson D. Lim, confirmed the earlier assessments of disability with a grade 9 impediment.[7]

All expenses incurred in respondent’s examination and treatments were shouldered by the petitioners. Respondent was also paid the allowable illness allowances, commensurate to a grade 9 impediment.

On June 25, 1999, petitioners offered US$13,060 as disability benefits which respondent rejected. Respondent claimed that he deserves to be paid US$60,000 for a grade 1 impediment. Failing to reach an agreement, respondent filed, with the Regional Arbitration Branch (RAB), a complaint for disability benefits, illness allowance, damages and attorney’s fees.

The Labor Arbiter ruled for respondent and ordered petitioners to pay respondent US$60,000 as disability benefits, P100,000 as moral damages, and ten percent of the total monetary award as attorney’s fees.

On appeal, the National Labor Relations Commission (NLRC) initially reversed the ruling of the RAB on the ground that findings of the company-designated doctors were binding, as stipulated in the Philippine Overseas Employment Agency (POEA) Standard Employment Contract.[8] However, upon respondent’s motion for reconsideration, citing jurisprudence that findings of company-designated doctors are self-serving, the NLRC affirmed the ruling of the RAB with respect only to the award of disability benefits.

Petitioners seasonably filed a motion for extension of time to file their petition for certiorari with the Court of Appeals. On July 2, 2002, the appellate court denied the motion on the ground that pressure of work is not a compelling reason for the grant of an extension.

In view of the foregoing, petitioner’s motion for extension is DENIED and the instant case is DISMISSED.

SO ORDERED.[9]

Prior to the receipt of the appellate court’s denial, petitioners filed the petition. It was noted without action in view of the July 2, 2002 Resolution.[10] Subsequently, petitioners moved for reconsideration of the resolution, but it was denied.[11]

Hence, this appeal by certiorari ascribing error to the Court of Appeals,

I. … WHEN IT DENIED PETITIONERS’ MOTION FOR EXTENSION OF TIME TO FILE THEIR PETITION FOR CERTIORARI UNDER RULE 65, FAILING TO GIVE DUE CONSIDERATION TO THE ALLEGATIONS OF PETITIONERS THEREIN;

II. … WHEN IT MERELY NOTED PETITIONERS’ PETITION FOR CERTIORARI UNDER RULE 65 WITHOUT PERUSING THE ALLEGATIONS THEREIN AND THE ARGUMENTS IN SUPPORT THEREOF WHICH, UNDER THE CIRCUMSTANCES, IS CLEARLY INIQUITOUS AND UNJUST.[12]

Here, we are asked to resolve the procedural issue of whether the Court of Appeals erred when it denied petitioners’ motion for extension of time to file a petition; and the substantive issue of the proper disability benefits that respondent is entitled to.

Anent the procedural issue, petitioners contend that the appellate court erroneously applied the ruling in Velasco v. Ortiz,[13] because the factual circumstances therein were different from the present case. In Velasco, the parties sought for the admission of their appeal that was filed beyond the reglementary period. In the present case, however, petitioners filed their motion for extension of time within the reglementary period. They maintain that they have a valid and compelling reason in asking the appellate court for extension. Moreover, petitioners posit that technical rules of procedure should give way to substantive justice.

On the other hand, respondent argues that there should be more than a mere claim of “extreme pressure of work” to justify an extension of time to file a petition for certiorari. He calls attention to the fact that petitioners never moved for the reconsideration of the NLRC decision, which is a prerequisite for the filing of a petition for certiorari. Likewise, respondent counters petitioners’ plea for liberality by indicating their failure to file a motion for reconsideration of the NLRC decision.

Jurisprudence abounds on the subject that a motion for reconsideration is a prerequisite for the filing of a special civil action for certiorari.[14] A literal interpretation of this prerequisite would require a motion for reconsideration of the NLRC decision, which granted a previous motion for reconsideration and reversed a prior decision. After all, the second decision is considered as entirely new.

We cannot fault the appellate court for faithfully complying with the rules of procedure which it has been mandated to observe.[15] Save for the most persuasive of reasons, strict compliance is enjoined to facilitate the orderly administration of justice.[16]

Indeed, on several occasions, we relaxed the rigid application of the rules of procedure to afford the parties opportunity to fully ventilate the merits of their cases. This is in line with the time-honored principle that cases should be decided only after giving all parties the chance to argue their causes and defenses. Technicality and procedural imperfection should thus not serve as basis of decisions.[17]

The reason for requiring a motion for reconsideration is to make sure that administrative remedies have been exhausted before a case is appealed to a higher court. It allows the adjudicator a second opportunity to review the case, to grapple with the issues therein, and to decide anew a question previously raised.[18] It is presumed that an administrative agency, if afforded an opportunity to pass upon a matter, will decide the same correctly, or correct any previous error committed in its forum.[19]

With the first motion for reconsideration which the NLRC granted, there is no need for the parties to file another motion for reconsideration before bringing up the matter to the Court of Appeals. The NLRC was already given the opportunity to pass upon and correct its mistakes. Moreover, it would be absurd to ask the NLRC to keep on reversing itself.

Considering that property rights of both parties are involved here, we will give due course to the instant petition. Remanding the case to the court a quo will only frustrate speedy justice and, in any event, would be a futile exercise, as in all probability the case would end up with this Court. [20] Thus, we shall bring the present controversy to rest by deciding on the appropriate disability benefits that respondent is entitled to.

On the substantive issue, petitioners assert that the NLRC erred when it said that findings of company-designated doctors are self-serving. They point out that there were three doctors who came up with the same findings. They argue that these findings were more credible than the findings of respondent’s doctor. In addition, petitioners claim that the award of a grade 1 impediment/disability benefit was wrong considering that respondent subsequently gained employment as chief mate of another vessel.

In resolving the merits of the case, we find pertinent Section 30 of the POEA Memorandum Circular No. 55, Series of 1996,[21] which provides the schedule of disability or impediment for injuries suffered and illness contracted. The particular illness of the respondent is not within those enumerated. But, the same provision supplies us with the guideline that any item in the schedule classified under grade 1 constitutes total and permanent disability.

Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.[22] As gleaned from the records, respondent was unable to work from August 18, 1998 to February 22, 1999, at the least, or more than 120 days, due to his medical treatment. This clearly shows that his disability was permanent.

Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.[23] It does not mean absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.[24]

Although the company-designated doctors and respondent’s physician differ in their assessments of the degree of respondent’s disability, both found that respondent was unfit for sea-duty due to respondent’s need for regular medical check-ups and treatment which would not be available if he were at sea. There is no question in our mind that respondent’s disability was total.

Petitioners tried to contest the above findings by showing that respondent was able to work again as a chief mate in March 2001.[25] Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years. It is of no consequence that respondent was cured after a couple of years. 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.[26] An award of a total and permanent disability benefit would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.

WHEREFORE, the petition is DENIED for lack of merit. The Resolutions dated July 2, 2002 and August 15, 2002 of the Court of Appeals in CA-G.R. SP No. 71293, as well as the Resolution dated April 9, 2002 of the National Labor Relations Commission in NLRC NCR CA No. 23333-2000 are AFFIRMED.

Costs against petitioners.

SO ORDERED.

LEONARDO A. QUISUMBING

Associate Justice

WE CONCUR:

HILARIO G. DAVIDE, JR.

Chief Justice

Chairman

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

Associate Justice Associate Justice

ADOLFO S. AZCUNA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

HILARIO G. DAVIDE, JR.

Chief Justice

[1] Rollo, pp. 30-31, 33.

[2] Id. at 44, 65.

[3] Id. at 45, 66.

[4] Grading is based on Section 30 of Memorandum Circular No. 55, Series of 1996.

[5] Rollo, p. 71.

[6] Id. at 50.

[7] Id. at 81.

[8] Id. at 117-125.

[9] Id. at 31.

[10] Id. at 175.

[11] Id. at 33.

[12] Id. at 15.

[13] G.R. No. 51973, 16 April 1990, 184 SCRA 303.

[14] Pilipino Telephone Corporation v. National Telecommunications Commission, G.R. No. 138295, 28 August 2003, 410 SCRA 82, 88; Republic v. Express Telecommunication Co., Inc., G.R. Nos. 147096 & 147210, 15 January 2002, 373 SCRA 316, 343; Bernardo v. Abalos, Sr., G.R. No. 137266, 5 December 2001, 371 SCRA 459, 464.

[15] Casim v. Flordeliza, G.R. No. 139511, 23 January 2002, 374 SCRA 386, 393.

[16] El Reyno Homes, Inc. v. Ong, G.R. No. 142440, 17 February 2003, 397 SCRA 563, 570.

[17] Republic v. Court of Appeals, G.R. No. 130118, 9 July 1998, 292 SCRA 243, 251-252.

[18] Salcedo II v. Commission on Elections, G.R. No. 135886, 16 August 1999, 312 SCRA 447, 461.

[19] Gonzales v. Court of Appeals, G.R. No. 106028, 9 May 2001, 357 SCRA 599, 604; Diamonon v. Department of Labor and Employment, G.R. No. 108951, 7 March 2000, 327 SCRA 283, 291.

[20] Reyes v. Court of Appeals, G.R. No. 154448, 15 August 2003, 409 SCRA 267, 278 citing Fernandez v. National Labor Relations Commission, G.R. No. 105892, 28 January 1998, 285 SCRA 149, 170.

[21] REVISED STANDARD EMPLOYMENT TERMS AND CONDITIONS GOVERNING THE EMPLOYMENT OF FILIPINO SEAFARERS ON BOARD OCEAN-GOING VESSELS.

[22] Government Service Insurance System v. Cadiz, G.R. No. 154093, 8 July 2003, 405 SCRA 450, 454; Ijares v. Court of Appeals, G.R. No. 105854, 26 August 1999, 313 SCRA 141, 149-150.

[23] Philippine Transmarine Carriers, Inc. v. NLRC, G.R. No. 123891, 28 February 2001, 353 SCRA 47, 53.

[24] Ibid., citing Bejerano v. Employees’ Compensation Commission, G.R. No. 84777, 30 January 1992, 205 SCRA 598, 602.

[25] Rollo, p. 223.

[26] Government Service Insurance System v. Cadiz, supra, note 22.

[G.R. No. 156573, June 19, 2007]

MICRONESIA RESOURCES, DYNACOM SHIELD SHIPPING LTD. AND SINGA SHIP MANAGEMENT, A. S., PETITIONERS, VS. FABIOLO CANTOMAYOR, RESPONDENT.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the September 13, 2002 Decision^[1] and December 5, 2002 Resolution^[2] of the Court of Appeals (CA) in CA-G.R. SP No. 70388^[3] which reversed and set aside the November 29, 2001 Decision^[4] and January 31, 2002 Resolution^[5] of the National Labor Relations Commission (NLRC) in NLRC NCR CA 027007-01 [OFW (M) 99-10-1799-00].

The antecedent facts are as summarized by the CA, viz.:

On or about September 29, 1998, petitioner Fabiolo Cantomayor^* entered into a contract of overseas employment with respondent Dynacom Shield Shipping Ltd. and Singa Ship Management A.S. represented by respondent Micronesia Resources^** to work on board the vessel M/T "CLOUD" under the following terms and conditions approved by the Philippine Overseas Employment Administration (POEA):

Duration of Contract: 9 mos. plus/minus 1 mo.
Position: Third Officer
Basic Mo. Salary: US $824.00/mo.
Hours of work: 191 hrs./mo. (as per CBA '98)
Overtime: US $ 512.00/mo.
Vacation Leave with Pay: US $ 8 days/mo.

Sometime in October 1998, petitioner joined the vessel M/T "CLOUD". Two (2) months thereafter, petitioner started to feel weak and encountered difficulty in breathing. Petitioner ignored his condition and continued with his employment. However, on or about February 17, 1999, petitioner, while working, suddenly felt dizzy and eventually collapsed. He regained consciousness not long after but since then he always felt weak and was constrained to work lightly.

When the vessel reached Italy, petitioner was brought to a hospital and was diagnosed to have coronary artery disease and was advised to undergo by-pass surgery. In view thereof, petitioner was repatriated to the Philippines and immediately sought treatment at the Medical Center of Manila, attended by a company-designated physician who noted that three (3) of his artery vessels were blocked, thereby confirming the diagnosis made by the doctors in Italy and echoing the same recommendation for immediate by-pass surgery. Thus, on or about June 30, 1999, petitioner underwent coronary artery by-pass at the Philippine Heart Center.

Considering his medical condition, petitioner was not able to return to his previous employment as a Third Officer. Consequently, he requested respondents to grant him permanent and total disability compensation as well as the reimbursement of his medical expenses in accordance with the terms and conditions of the Revised Standard Employment Terms and Conditions Governing the Employment of Filipino Seafarer on Board Ocean-going Vessels (otherwise known as the POEA Standard Employment Contract) and the JSU-AMOSUP CBA, of which he was allegedly covered.^[6]

Micronesia, et al. denied the claim of Cantomayor but shouldered the expenses of his ongoing medical treatment. They also offered to pay him compensation for his Grade 7 permanent and partial disability based on the following recommendation of a company physician:

There is no specific item in the POEA Schedule of Disability Grading regarding his illness. The nearest item is under "Abdomen" #4, instead of intra-abdominal organ involvement, the involved organ is the heart. Mr. Cantomayor suffered a disability grading of Grade 7 â€“ moderate residuals of disorder of inthrathoracic organ (heart).^[7]

Cantomayor pressed for payment of permanent and total disability compensation amounting to US $80,000.00 and filed a complaint with the National Labor Relations Commission (NLRC) Arbitration Board. Labor Arbiter (LA) Romeo Go rendered a Decision on October 16, 2000, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered dismissing the complaint for lack of merit. However, respondents are ordered to pay complainant the amount of US$20,900 pertaining to grade 7 disability benefits.^[8]

Micronesia, et al. did not appeal from the foregoing award. It was only Cantomayor who filed an appeal with the NLRC, insisting that he be compensated for the permanent and total disability he suffered.

The NLRC dismissed his Appeal in its November 29, 2001 Decision. His Motion for Reconsideration was also denied in NLRC Resolution dated January 31, 2002.

Cantomayor filed a Petition for Certiorari which the CA granted in the September 13, 2002 Decision assailed herein, thus:

WHEREFORE, premises considered, the present petition is hereby GIVEN DUE COURSE, and the writ prayed for, accordingly GRANTED. The assailed Decision dated November 29, 2001 and Resolution dated January 31, 2002 of the National Labor Relations Commission (NLRC) in NLRC NCR CA 027007-01 [OFW (M) 99-10-1799-00] are hereby REVERSED and SET ASIDE and a new one entered declaring petitioner to be suffering from a permanent and total disability justifying the grant in his favor of full benefits in accordance with law. In addition, attorney's fees equivalent to ten percent (10%) of the total monetary award herein is likewise granted to petitioner.

No pronouncement as to costs.

SO ORDERED.^[9]

Micronesia, et al. filed a Motion for Reconsideration but to no avail.

Hence, the present Petition with the following issues:

First, the Petition for Certiorari filed by private respondent is way out of time and should no longer have been acted upon, and because of this, the Decision of the NLRC below became final and executory and may no longer be disturbed;

Second, the finding of the Court of Appeals that private respondent suffers total and permanent disability is baseless;

Third, the private respondent is entitled to no more than what the NLRC awarded him below, because: the mere fact that private respondent can no longer work as a seaman is not in itself sufficient justification to award him total disability compensation; b) entitlement to disability compensation under the Standard Terms of the POEA Contract is schedular in nature, and does not support the total disability compensation award granted to the private respondent; and c) private respondent is entitled only to the disability compensation justified by his condition, which is as assessed by the company's designated physicians.^[10]

In their Memorandum, petitioners Micronesia, et al. insist that respondent Cantomayor is not entitled to any compensation because his illness is not compensable and, even if it were, the same was a pre-existing condition which he concealed from his employers. They also argue that, if Cantomayor is held entitled to compensation, then his award should be that corresponding to a Grade 7 disability for this was the assessment given by their company physician.

The petition lacks merit.

The procedural issue raised by Micronesia, et al. deserves short shrift. It is axiomatic that the CA has discretion to grant a motion for extension provided that it be interposed within the original filing period.^[11] Cantomayor had until April 9, 2002 (April 8, 2002 being a holiday) to file a petition for certiorari but on said date he filed a Motion for Extension^[12] of thirty (30) days or until May 9, 2002 to file his petition. He actually filed said petition on April 30, 2002. The timeliness of said petition was never questioned by Micronesia, et al. before the CA, not even in their Motion for Reconsideration from the September 13, 2002 CA Decision. The petition was therefore properly given due course by the CA.

Going now into the substantive matter raised by Micronesia, et al., we note that the LA denied the claim of Cantomayor for permanent and total disability compensation based on the finding that his ailment was a pre-existing condition. The LA explained:

It is undisputed that complainant was repatriated to the Philippines due to coronary disease he suffered while employed as a seafarer abroad. Back home, he was confirmed to be suffering from coronary artery disease [in] 3 vessels and needed a bypass surgery. In fact, the findings of the hospital in Italy show that complainant suffered occlusions in three vessels, one ranging from 70% to 100%, the second 100%, and the third 80%, all of which indicate that two of the said vessels were almost completely blocked while the third has been reduced to 20% capacity. This [sic] findings prove that complainant's ailment was already in an advanced stage affirming the fact that the illness was not an overnight occurrence but already a pre-existing condition.^[13]

The NLRC found no taint of grave abuse of discretion in the foregoing decision of the LA.

The CA overturned the NLRC and LA and held that the coronary artery disease which afflicted Cantomayor during his employment with Micronesia, et al. caused him to suffer a permanent and total disability with a Grade 7 impediment rate, for which he is entitled to full compensation. The reasons cited by the CA in reversing the NLRC and LA are summarized as follows:

First, Cantomayor's ailment is compensable under Section 32-A of the POEA Standard Employment Contract.^[14]

Second, respondent's ailment was not pre-existing as shown by the result of his Pre-employment Medical Examination (PEME) where physicians designated by petitioners declared him fit to work. The finding that respondent's ailment was already in an advanced stage when it was discovered does not preclude the possibility that it developed during his employment with petitioners.^[15]

Finally, respondent's disability is permanent and total because the severity of his ailment rendered him incapable of performing the work of a seafarer.^[16]

The reasoning of the CA is well-founded, although we note that it was mistaken when it cited Section 32-A of the POEA Standard Employment Contract.

In Paragraph 2 of their September 29, 1998 Contract of Employment,^[17] the parties incorporated the provisions of the 1996 POEA Standard Employment Contract (1996 POEA-SEC),^[18] such as Section 20-B (5) which reads:

Section 20 Compensation and Benefits

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:

x x x x
In case of permanent total or partial disability of the seafarer during the term of his 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 applicable at the time the illness or disease was contracted.

We have interpreted the foregoing provision to be a sufficient legal basis for a grant of disability benefits to a seafarer who suffers any injury or illness during the term of his contract. In the recent case of Remigio v. National Labor Relations Commission,^[19] we held:

"Disability" is generally defined as "loss or impairment of a physical or mental function resulting from injury or sickness." Clearly, "disability" is not synonymous with "sickness" or "illness," the former being a potential effect of the latter. The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted. It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC, nowhere in the 1996 POEA SEC is there a list of "Occupational Diseases."

The unqualified phrase "during the term" in Section 20(B) of the 1996 POEA SEC covers all injury or illness occurring in the lifetime of the contract. The injury or illness need not be shown to be work-related. In Sealanes Marine Services, Inc. v. NLRC, we categorically held:
The argument of petitioners that since cancer of the pancreas is not an occupational disease it was incumbent upon Capt. Arante to prove that his working conditions increased the risk of contracting the same, is not meritorious. It must be noted that his claims arose from the stipulations of the standard format contract entered into between him and SEACORP which, per Circular No. 2, Series of 198420^[30] of respondent POEA was required to be adopted and used by all parties to the employment of any Filipino seamen (sic) on board any ocean-going vessel. His claims are not rooted from the provisions of the New Labor Code as amended. Significantly, under the contract, compensability of the death or illness of seam[e]n need not be dependent upon whether it is work connected or not. Therefore, proof that the working conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the term thereof by reason of such disease or illness, of the benefits stipulated thereunder which are, under Section C(2) of the same Circular No. 2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to under Philippine laws.
This principle was reiterated in the recent case of Seagull Shipmanagement and Transport, Inc. v. NLRC.

While indeed, the Labor Code's provisions on disability benefits under the Employees' Compensation Commission (ECC) require the element of work-relation for an illness to be compensable, the 1996 POEA SEC giving a more liberal provision in favor of the seafarer must apply. As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties. In controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former's favor. The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, in consonance with the avowed policy of the State to give maximum aid and protection of labor. (Citations omitted)^[20]

The aforecited ruling is controlling for it is based on facts and issues that are strikingly parallel to those obtaining in the present case: both cases involve Filipino seafarers stricken with coronary artery disease during the terms of their contracts.

As in Remigio v. National Labor Relations Commission, therefore, we apply to the present case Section 20-B(5) of the 1996 POEA-SEC as legal basis for the grant of disability benefits to Cantomayor who was afflicted with coronary artery disease during the term of his contract. The CA therefore was correct in ruling that the claim of Cantomayor had legal basis. We must point out, though, that it was mistaken in citing, not Section 20-B, but Section 32-A. The latter provision (Section 32-A) can be found only in the 2000 POEA-SEC,^[21] which took effect after the parties entered into their 1998 employment contract.

As to the finding of the LA and NLRC that said ailment was pre-existing, the same is belied by the result of Cantomayor's PEME.

In his PEME result, Cantomayor declared that he did not suffer from high blood pressure or heart trouble or that he had not been told that he suffered from any such ailment.^[22] Micronesia, et al. claim that such declaration is untruthful. We disagree.

In the same PEME result, there appears a certification that after physical examination, Cantomayor was found to have a normal heart. However, the result of his ECG is indicated as follows:

ECG Report () Within Normal Limits () Significant Findings Poor R-waves progression NSSTTWC.^[23] (Emphasis added)

Yet, the examining physician, designated by petitioner, certified him fit to work.

The foregoing entries in his PEME result confirm that even if Cantomayor had declared himself free of heart ailment, Micronesia, et al. had the opportunity to pre-qualify, screen and verify, as it actually did in the case of Cantomayor for it even noted significant findings in his ECG result. This precludes the possibility that Cantomayor concealed his illness.^[24] Rather, Micronesia, et al. hired him despite the ECG Report and should now accept liability for his ailment in the course of his employment.^[25]

Having established that the illness of Cantomayor is compensable, we now resolve whether the amount awarded by the CA is proper.

The 1996 POEA-SEC requires that a claim for disability benefit be supported by a post-employment medical report issued as follows:

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.^[26]

There is no dispute that beginning March 26, 1999 or three days from his repatriation on March 23, 1999, Cantomayor submitted himself to a series of medical examinations conducted by a company physician.^[27] On October 8, 1999, said company physician issued an assessment limiting his disability to a Grade 7 impediment rate.^[28] Both the NLRC and LA relied on this assessment. Micronesia, et al. insist that said assessment is conclusive.

Not so. We have held that while it is the company-designated physician who must declare that a seafarer-claimant suffers a permanent disability, the former's declaration is not conclusive upon the latter or the court.^[29] In the present case, there is no indication that Cantomayor sought a second opinion. Nonetheless, it is of record that the latter was rendered unfit to discharge his duties as Third Officer for more than 120 days. It is of record that Cantomayor was repatriated on March 23, 1999. Almost seven months later or on October 8, 1999, Micronesia, et al.'s designated physician issued the following medical findings on the condition of Cantomayor:

x x x Post-operatively, he developed post-operative wound infection on care. Post-operative Treadmill Exercise Test was done last September 96, 1999 and the findings revealed signs of ischemia at the inferolateral wall.

At present, the patient complains of on and off chest pain and easy fatigability on long distance ambulation. He has no shortness of breath and his blood pressure is controlled at 130/90.

Based on the clinical course and findings, I am recommending a partial permanent disability. (Emphasis added)

Based on the foregoing medical record alone, it is clear that Cantomayor had not been able to resume work as a Third Officer for more than 120 days and that he continues to suffer chest pains and fatigability on long distance ambulation. The partial disability assessment of the company physician is therefore inconsistent with said record. To quote from Remigio v. National Labor Relations Commission once again:

A total disability does not require that the employee be absolutely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue her usual work and earn therefrom. On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days. Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad, we held:
Permanent disability is inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body x x x

Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do. It does not mean absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity.
Applying the foregoing standards, we find that petitioner suffered from permanent total disability.

It is undisputed that petitioner started to suffer chest pains on March 16, 1998 and was repatriated on April 23, 1998 after having been found as "not fit for duty." The medical report dated June 25, 1998 of the company-designated physician, Dr. Abesamis, establishes the following facts, viz: a) petitioner underwent a coronary bypass on April 2, 1998; b) petitioner was "unfit" from April 27, 1998 (date of referral) to June 25, 1998 (date of medical report); c) petitioner may not return to sea duty within 8-10 months after June 25, 1998; and d) petitioner may return to sea duty as a piano or guitar player after 8-10 months from June 25, 1998.

These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months -- from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998. This, by itself, already constitutes permanent total disability. What is more, private respondents were well aware that petitioner was working for them as a drummer, as proven by the communication of respondent principal to respondent agency referring to petitioner as "DRUMMER WITH OUR ENCHANTED ISLE QUARTET."^[30][55] Thus, the certification that petitioner may go back specifically as a piano or guitar player means that the likelihood of petitioner returning to his usual work as a drummer was practically nil. From this, it is pristine clear that petitioner's disability is total and permanent.

Private respondents' contention that it was not shown that it was impossible for petitioner to play the drums during the 8-10 months that he was on land is specious. To our minds, petitioner's unfitness to work attached to the nature of his job rather than to its place of performance. Indeed, playing drums per se requires physical exertion, speed and endurance. It demands the performance of hitting strokes and repetitive movements that petitioner, having undergone a triple coronary bypass, has become incapacitated to do.

The possibility that petitioner could work as a drummer at sea again does not negate the claim for permanent total disability benefits. In the same case of Crystal Shipping, Inc., we held:
Petitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001. Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years. 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. (Emphasis added; citations omitted)

Given that Cantomayor had not been able to resume the same work or activity for more than 120 days, the CA cannot be faulted in discarding the Grade 7 disability assessment of the company physician and in declaring that Cantomayor suffers from Grade 1 disability.

WHEREFORE, the Petition is denied for lack of merit.

Costs against petitioners.

SO ORDERED.

Ynares-Santiago, (Chairperson), Chico-Nazario, andNachura, JJ., concur.

^[1] Penned by Associate Justice Martin S. Villarama, Jr. and concurred in by Associate Justices Remedios Salazar-Fernando and Amelita Tolentino; rollo, p. 34.

^[2] Rolllo, p. 44.

^[3] Entitled "Fabiolo Cantomayor, Petitioner, versus National Labor Relations Commission, Micronesia Resources, Dynacom Shield Shipping Ltd. and Singa Ship Management, A.S., Respondents."

^[4] Rollo, p. 89.

^[5] Id. at 150.

* Herein referred to as Cantomayor.

** Herein referred to as Micronesia, et al..

^[6] CA Decision, rollo, p. 35.

^[7] Rollo, pp. 83-85.

^[8] LA Decision, rollo, p. 97.

^[9] Id. at 40.

^[10] Petition, rollo, pp. 20-21.

^[11] Yutingco v. Court of Appeals, 435 Phil. 83, 91 (2002).

^[12] Rollo, p. 2.

^[13] LA Decision, rollo, p. 95.

^[14] CA Decision, rollo, p. 38.

^[15] Id. It is noted that, for lack of evidence of its existence, the provisions of the JSU AMOSUP CBA were not considered by the CA.

^[16] Id. at 39-40.

^[17] Id. at 117.

^[18] Approved under Department Order No. 33 and Memorandum Circular No. 55, both series of 1996.

^[19] G.R. No. 159887, April 12, 2006, 487 SCRA 190.

^[20] Remigio v. National Labor Relations Commission, supra note 19, at 204-206.

^[21] Approved under Department Order No. 04 and Memorandum Circular No. 09, both series of 2000.

^[22] Medical Certificate for Seafarer, supra.

^[23] Id.

^[24] More Maritime Agencies, Inc. v. National Labor Relations Commission, 366 Phil. 646, 655 (1999).

^[25]Seagull Ship Management and Transport, Inc. v. National Labor Relations Commission, 388 Phil. 906, 913 (2000).

^[26] Cited in United Philippine Lines, Inc. v. Beseril, G.R. No. 165934, April 12, 2006, 487 SCRA 248, 261.

^[27] Rollo, pp. 76-81.

^[28] Id. at 83.

^[29] Seagull Maritime Corp. v. Dee, G.R. No. 165156, April 20, 2007.

^[30] Remigio v. National Labor Relations Commission, supra note 19, at 210-213.

SECOND DIVISION

[G.R. No. 159887, April 12, 2006]

BERNARDO REMIGIO, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION, C.F. SHARP CREW MGT., INC. & NEW COMMODORE CRUISE LINE, INC.,^[1]RESPONDENTS.

D E C I S I O N

PUNO, J.:

Before us is a petition for review on certiorari seeking the reversal of the decision^[2] and resolution^[3] of the Court of Appeals (CA) in CA-G.R. No. 67782 which affirmed the March 22, 2001 Resolution^[4] of the National Labor Relations Commission (NLRC), awarding sickness allowance of US$3,400.00 to petitioner but denying his claim for disability benefits.

The facts are undisputed.

On November 27, 1997, petitioner Bernardo Remigio entered into a Contract of Employment^[5] with respondent C.F. Sharp Crew Management, Inc. (respondent agency), for and in behalf of its foreign principal, co-respondent New Commodore Cruise Line, Ltd.Â (respondent principal).Â The contract provided that the terms and conditions of the standard employment contract governing the employment of all seafarers, approved per Department of Labor and Employment's Department Order No. 33 and the Philippine Overseas Employment Administration's Memorandum Circular No. 55, both Series of 1996 (1996 POEA SEC), were to be strictly and faithfully observed.^[6]Â Under the contract, petitioner was to work as Musician II on board SS "Enchanted Isle," a vessel owned and operated by respondent principal, for ten (10) months, at a basic monthly salary of US$857.00, overtime rate of US$257.00 per month and vacation leave with pay of three (3) days per month.

After petitioner passed the pre-employment medical examination, he joined the vessel and started performing his job as a drummer in December 1997.Â On March 16, 1998, while the vessel was docked at the port of Cancun, Mexico, petitioner went ashore to attend to some personal matters.Â While walking, petitioner suddenly felt severe chest pain and shortness of breath.Â He returned to the vessel and experienced another such episode on the same evening.Â When his chest pain recurred the following day, he went to the vessel's infirmary where he again suffered from chest pain.Â Petitioner was brought and confined for seven (7) days at the Grand Cayman Island Hospital.Â His pain worsened upon physical exertion but improved with rest.Â Thus, he was instructed to refrain from performing any kind of physical activity and to have a complete bed rest.Â He rejoined the vessel on March 24, 1998.

Upon the vessel's arrival at the port of New Orleans, Louisiana, U.S.A., petitioner was brought to the West Jefferson Medical Center for a more thorough check-up and evaluation. Dr. S. Kedia's "impression" was that petitioner's chest pains were "probable secondary to severe coronary artery disease."^[7]Â Dr. Armengol Porta conducted a physical examination on petitioner, including a coronary angiogram,^[8] and found that he had several blockages in his coronary arteries.Â A triple coronary artery bypass was performed on petitioner on April 2, 1998 by a Dr. Everson.

On April 8, 1998, petitioner was transferred to the Marine Medical Unit for observation.Â After twelve (12) days of confinement, petitioner's cardiologist found him "not fit for sea duty" and recommended for him to be "[r]epatriated to home port for follow up with a cardiologist."^[9]Â He was repatriated to Manila on April 23, 1998.

In a letter dated April 27, 1998, Henry P. Desiderio, the manager of the Crewing Administration and Business Development Department of respondent agency, referred petitioner to the American Outpatient Clinic for medical check-up.^[10]

On May 13, 1998, petitioner, through counsel, sent a formal communication^[11] to respondent agency demanding payment of unpaid wages, sickness allowance and permanent total disability benefits.Â The demand, however, was refused.

In a letter dated June 25, 1998 addressed to the manager of respondent agency, Jose Enrique P. Desiderio, the company-designated physician, Dr. Leticia C. Abesamis, of the American Outpatient Clinic wrote, viz:

Mr. B. Remigio who had Coronary Bypass (6x) abroad last April 2, 1998 has completed his cardiac rehabilitation here at the Phil. Heart Center.Â Stress done on June 23, 1998 shows functional capacity at 8 METS.

Lately he has been complaining of epigastric discomfort probably from Ecotrin.Â He has been on ulcer regimen.

He may go back to sea duty as piano player or guitar player after 8-10 more months.

He was unfit from April 27, 1998 to June 25, 1998

.

^[12]

(

emphases supplied

)

On November 12, 1998, petitioner filed the instant complaint^[13] for (a) recovery of permanent total disability benefits amounting to US$60,000.00; (b) actual and compensatory damages for loss of earning capacity in the amount of US$154,260.00; Â Â and (c) moral and exemplary damages and attorney's fees.^[14]Â Private respondents made an offer to settle the case at US$30,000.00 as evidenced by fax letters, to which petitioner made a counter-proposal of US$40,000.00.^[15] No agreement was reached as the parties proceeded to submit their respective position papers and supporting evidence.

In support of his claims, petitioner submitted copies of: a)Â his Contract of Employment with private respondents; b) communication of respondent principal to respondent agency informing the latter about petitioner's "heart attack," repatriation and replacement;Â c)Â History and Physical Report of petitioner and Procedure ReportÂ of his cardiac catheterization;Â d)Â receipts from a drugstore and the Philippine Heart Center; e)Â 2D Echocardiogram-Color Doppler Report; f) filled up form of the Exercise Testing and Cardiac Rehabilitation Laboratory of the Philippine Heart Center showing the results of the tests done on petitioner; and g) the Discharge Summary of the Marine Medical Unit.^[16]Â On the other hand, private respondents submitted copies of: a) the Contract of Employment; b) referral letter dated April 27, 1998 of respondent agency to the American Outpatient Clinic; c) demand letter dated May 13, 1998 of petitioner's counsel; and d) medical report of Dr. Leticia C. Abesamis of the American Outpatient Clinic addressed to the manager of respondent agency.^[17]

On September 15, 1999, Labor Arbiter Manuel R. Caday rendered his decision,^[18] the dispositive portion of which states:

WHEREFORE, premises considered, judgment is hereby rendered ordering the respondents jointly and severally to pay complainant, his sickness allowance in the amount of US$3,400.00.

All other claims are hereby dismissed for lack of merit.

SO ORDERED.

^[19]

In ruling that petitioner is not entitled to disability benefits, Labor Arbiter Caday noted that the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC does not provide for the payment of compensation benefits in cases of cardiac catheterization or heart bypass. Even assuming that it was included, he held that no medical report was presented to show that petitioner's disability was total and permanent as to be classified under Grade 1 of the said schedule of disability. Nonetheless, petitioner's claim for sickness allowance was granted as there was no showing that private respondents paid petitioner's basic wages after his repatriation, as provided under Section 20, B(3) of the 1996 POEA SEC.Â Petitioner was awarded US$3,400.00 as sickness allowance, computed on the basis of his monthly wage of US$850.00 multiplied by four (4) months.

On appeal by petitioner, the NLRC affirmed the decision of the Labor Arbiter in toto.^[20] Petitioner filed a motion for reconsideration of the NLRC's resolution, to no avail.Â Accordingly, he filed a petition for certiorari with prayer for the issuance of a writ of preliminary injunction and/or temporary restraining order with the CA.^[21] On March 31, 2003, the CA dismissed the petition.^[22]

The CA likewise did not find substantial evidence to prove that the heart ailment incurred by petitioner during the term of his employment resulted to his disability,i.e., rendered him incapable of further seeking employment as a musician or to follow a substantially gainful occupation.Â It noted that petitioner's medical records abroad never mentioned that his heart ailment resulted to a disability.Â Petitioner's reliance on Dr. Abesamis's letter dated June 25, 1998 that he (petitioner) was "unfit from April 27, 1998 to June 25, 1998" was found as insufficient to prove that petitioner's earning capacity was either lost or diminished.Â The statement that petitioner "may go back to sea duty as piano player or guitar player after 8-10 more months" was likewise found as insufficient to prove that petitioner was actually "sidelined" or that it was impossible for him to work and earn as a musician during the 8-10 months that he was not on board the vessel.Â Finally, it considered that heart ailment is not included among the compensable sicknesses and injuries under the 1996 POEA SEC.

Petitioner's motion for reconsideration with the CA was denied.^[23]Â Hence, this petition in which petitioner prays that he be awardedÂ US$60,000.00 as permanent total disability benefits, US$3,428.00 as sickness allowance, attorney's fees and costs of suit.Â He assigns as lone error, the following:

THE DECISION OF THE HONORABLE COURT OF APPEALS DISMISSING PETITIONER'S PETITION FOR CERTIORARI AND AFFIRMING

IN TOTO

THE HONORABLE PUBLIC RESPONDENT AND DENYING PETITIONER'S MOTION FOR RECONSIDERATION IS CONTRARY TO LAW.

^[24]

The main issue is whether petitioner is entitled to permanent total disability benefits.

At the outset, private respondents' contention that the instant petition must be dismissed outright for being grounded on a question of fact must be rejected.Â The issue of whether petitioner is entitled to permanent total disability benefits is a question of law as it calls for the correct application of the law and jurisprudence on disability benefits to the established facts on record.^[25] Â Â It raises the following sub-issues, to wit:

Whether heart ailment suffered during the term of the contract is compensable under the 1996 POEA SEC even if there is no proof of work-connection; and
Whether the concept of permanent total disability under the Labor Code applies to the case of a seafarer's claim for disability benefits under the 1996 POEA SEC.

First. In ruling that petitioner is not entitled to permanent total disability benefits, the Labor Arbiter and the CA considered that "cardiac catheterization," "heart bypass," or "heart ailment" is not found in the Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted under Section 30 of the 1996 POEA SEC.Â Petitioner contends that the schedule of disability under Section 30 of the 1996 POEA SEC is not exclusive.Â Heart ailment, though not listed in the schedule, is compensable.Â Private respondents, on the other hand, concede that while petitioner's illness is not listed under the 1996 POEA SEC, "this does not mean that the same is not compensable."^[26] Â However, since "heart ailment" is not listed under Section 30 of the 1996 POEA SEC, it is not an "occupational disease." It was therefore incumbent upon petitioner to prove by substantial evidence that his illness was work-related. Having failed to do so, he is not entitled to disability benefits.

We find merit in petitioner's argument.

Petitioner bases his claim for disability benefits under Section 20 in relation to Sections 30 and 30-A of the 1996 POEA SEC, viz:

Sec. 20.Â Compensation and Benefits

x x x

B.Â 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:

x x x

5.Â 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 [t]his Contract.Â Computation of his 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.

Sec. 30.Â

SCHEDULE OF DISABILITY OR IMPEDIMENT FOR INJURIES SUFFERED AND DISEASES OR ILLNESS CONTRACTED

x x x

CHEST-TRUNK-SPINE
Fracture of four (4) or more ribs resulting to severe limitation of chest expansion - Gr. 6

Fracture of four (4) or more ribs with intercostal neuralgia resulting in moderate limitation of chest expansion - Gr. 9

Slight limitation of chest expansion due to simple rib functional without myositis or intercostal neuralgia - Gr. 12

Fracture of the dorsal or lumber spines resulting to severe or total rigidity of the trunk or total loss of lifting power of heavy objects - Gr. 6

Moderate rigidity or two thirds (2/3) loss of motion or lifting power of the trunk - Gr. 8
Slight rigidity or one third (1/3) loss of motion or lifting power of the trunk - Gr. 11

Injury to the spinal cord as to make walking impossible without the aid of a pair of crutches - Gr. 4
Injury to the spinal cord as to make walking impossible even with the aid of a pair of crutches - Gr. 1

Injury to the spinal cord resulting to incontinence of urine and feces - Gr. 1

x x x

NOTE:Â

Any item in the schedule classified under Grade 1 shall be considered or shall constitute total and permanent disability

.

Sec. 30-A.Â SCHEDULE OF DISABILITY ALLOWANCES

Impediment Grade

Impediment

1
Maximun Rate
x
120.00%
2
Maximun Rate
x
88.81%
3
Maximun Rate
x
78.36%
4
Maximun Rate
x
68.66%
5
Maximun Rate
x
58.96%
6
Maximun Rate
x
50.00%
7
Maximun Rate
x
41.80%
8
Maximun Rate
x
33.59%
9
Maximun Rate
x
26.12%
10
Maximun Rate
x
20.15%
11
Maximun Rate
x
14.93%
12
Maximun Rate
x
10.45%
13
Maximun Rate
x
6.72%
14
Maximun Rate
x
3.74%

To be paid in Philippine Currency equivalent at the exchange rate prevailing during the time of payment.

(emphases supplied)"Disability" is generally defined as "loss or impairment of a physical or mental function resulting from injury or sickness."^[27] Â Clearly, "disability" is not synonymous with "sickness" or "illness," the former being a potential effect of the latter. Â The schedule in Sec. 30 of the POEA SEC is a Schedule of Disability or Impediment for Injuries Suffered and Diseases or Illness Contracted.Â It is not a list of compensable sicknesses. Unlike the 2000 POEA SEC,^[28] nowhere in the 1996 POEA SEC is there a list of "Occupational Diseases."

The unqualified phrase "during the term" in Section 20(B) of the 1996 POEA SEC covers all injury or illness occurring in the lifetime of the contract.Â The injury or illness need not be shown to be work-related.Â In Sealanes Marine Services, Inc. v.Â NLRC, ^[29]Â we categorically held:

The argument of petitioners that since cancer of the pancreas is not an occupational disease it was incumbent upon Capt. Arante to prove that his working conditions increased the risk of contracting the same, is not meritorious.Â It must be noted that his claims arose from the stipulations of the standard format contract entered into between him and SEACORP which, per Circular No. 2, Series of 1984

^[30]

of respondent POEA was required to be adopted and used by all parties to the employment of any Filipino seamen (sic) on board any ocean-going vessel.Â His claims are not rooted from the provisions of the New Labor Code as amended.Â Significantly,

under the contract, compensability of the death or illness of seam[e]n need not be dependent upon whether it is work connected or not.Â Therefore, proof that the working conditions increased the risk of contracting a disease or illness, is not required to entitle a seaman who dies during the term thereof by reason of such disease or illness, of the benefits stipulated thereunder

which are, under Section C(2) of the same Circular No. 2, separate and distinct from, and in addition to whatever benefits which the seaman is entitled to under Philippine laws.

(emphasis supplied)This principle was reiterated in the recent case of Seagull Shipmanagement and Transport, Inc. v. NLRC.^[31]

While indeed, the Labor Code's provisions on disability benefits under the Employees' Compensation Commission (ECC) require the element of work-relation for an illness to be compensable, the 1996 POEA SEC giving a more liberal provision in favor of the seafarer must apply.Â As a rule, stipulations in an employment contract not contrary to statutes, public policy, public order or morals have the force of law between the contracting parties.^[32] In controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former’s favor.^[33] The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, in consonance with the avowed policy of the State to give maximum aid and protection of labor.^[34]

Second. Is the Labor Code's concept of permanent total disability applicable to the case at bar?Â Petitioner claims to have suffered from permanent total disability as defined under Article 192(c)(1) of the Labor Code, viz:

Art. 192 (c) The following disabilities shall be deemed total and permanent:

(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules; Â Â Â Â Â Â x x x

Petitioner likewise cites Vicente v. ECC^[35] and Abaya, Jr. v. ECC,^[36] both of which were decided applying the Labor Code provisions on disability benefits. Private respondents, on the other hand, contend that petitioner erred in applying the definition of "permanent total disability" under the Labor Code and cases decided under the ECC as the instant case involves a contractual claim under the 1996 POEA SEC.

Again, we rule for petitioner.

The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to "secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith" and to "promote and protect the well-being of Filipino workers overseas."^[37] Section 29 of the 1996 POEA SEC itself provides that "[a]ll rights and obligations of the parties to [the] Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory." Even without this provision, a contract of labor is so impressed with public interest that the New Civil Code expressly subjects it to "the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects."^[38]

Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers.Â In Philippine Transmarine Carriers v. NLRC,^[39] seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by Â the company-accredited Â physician. The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico,^[40] GSIS v. CA,^[41] and Bejerano v. ECC^[42] that "disability should not be understood more on its medical significance but on the loss of earning capacity.Â Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that [he] was trained for or accustomed to perform, or any kind of work which a person of [his] mentality and attainment could do.Â It does not mean absolute helplessness."Â It likewise citedBejerano v. ECC,^[43] that in a disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity.

The same principles were cited in the more recent case of Crystal Shipping, Inc. v. Natividad.^[44] Â In addition, the Court cited GSIS v. Cadiz^[45] andIjares v. CA^[46] that "permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body."

Finally.Â Applying the Labor Code concept of permanent total disability to the facts on record, is petitioner entitled to permanent total disability benefit?

Petitioner contends that the certification of the company-designated physician that he may go back to sea duty as a piano or guitar player after 8-10 months even if his job was a drummer proves that he suffered from permanent total disability and thus entitled to permanent total disability benefits of US$60,000.00 under the 1996 POEA SEC.Â Private respondents, on the other hand, contend that: 1) petitioner did not present any proof that he suffered from permanent total disability,i.e., that his earning power is now reduced and that he is incapable of performing remunerative employment; 2)Â petitioner did not present any medical certificate showing that he suffered any disability; 3)Â on the contrary, the company-designated physician attested that petitioner could return to further sea duty; 4) even if he could not go back to sea duty, this does not mean that his earning capacity is impaired since as a musician, he may still perform on land; and 5) having admitted that he was a heavy smoker, petitioner is disqualified under Section 20(d) of the 1996 POEA SEC from recovering compensation for any incapacity or disability he suffered.

There are three kinds of disability benefits under the Labor Code, as amended by P.D. No. 626: (1) temporary total disability, (2) permanent total disability, and (3) permanent partial disability. Section 2, Rule VII of the Implementing Rules of Book V of the Labor Code differentiates the disabilities as follows:

Sec. 2. Disability.-- (a)Â A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules.

(b) A

disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X^[47]of these Rules.

(c)Â A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body.

(emphasis supplied)

In

Vicente v. ECC

:

^[48]

x x x the test of whether or not an employee suffers from ‘

permanent total disability’

is a showing of the

capacity of theÂ employee to continue performing his work notwithstanding the disability he incurred. Thus, if by reason of the injury or sickness he sustained, the employee is unable to perform his customary job for more than 120 days and he does not come within the coverage of Rule X of the Amended Rules onÂ Employees Compensability

(which, in more detailed manner, describes what constitutes temporary total disability),

then the said employee undoubtedly suffers from ‘permanent total disability’ regardless of whether or not he loses the use of any part of his body. (emphases supplied)

Atotal disability does not require that the employee be absolutely disabled, or totally paralyzed. What is necessary is that the injury must be such that the employee cannot pursue her usual work and earn therefrom.^[49]Â On the other hand, a total disability is considered permanent if it lasts continuously for more than 120 days.^[50]Â Thus, in the very recent case of Crystal Shipping, Inc. v. Natividad,^[51] we held:
Permanent disability

is inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.

^[52]

Â x x x

Total disability,

on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.

^[53]

Â It does not mean absolute helplessness.Â In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity.

^[54]

Applying the foregoing standards, we find that petitioner suffered from permanent total disability.

It is undisputed that petitioner started to suffer chest pains on March 16, 1998 and was repatriated on April 23, 1998 after having been found as "not fit for duty."Â The medical report dated June 25, 1998 of the company-designated physician, Dr. Abesamis, establishes the following facts, viz: a) petitioner underwent a coronary bypass on April 2, 1998; b) petitioner was "unfit" from April 27, 1998 (date of referral) to June 25, 1998 (date of medical report); c) petitioner may not return to sea duty within 8-10 months after June 25, 1998; and d) petitioner may return to sea duty as a piano or guitar player after 8-10 months from June 25, 1998.

These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months -- from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998.Â This, by itself, already constitutes permanent total disability.Â What is more, private respondents were well aware that petitioner was working for them as a drummer, as proven by the communication of respondent principal to respondent agency referring to petitioner as "drummer with our enchanted isle quartet."^[55] Thus, the certification that petitioner may go back specifically as a piano or guitar player means that the likelihood of petitioner returning to his usual work as a drummer was practically nil.Â From this, it is pristine clear that petitioner's disability is total and permanent.

Private respondents' contention that it was not shown that it was impossible for petitioner to play the drums during the 8-10 months that he was on land is specious.Â To our minds, petitioner's unfitness to work attached to the nature of his job rather than to its place of performance.Â Indeed, playing drums per se requires physical exertion, speed and endurance.Â It demands the performance of hitting strokes and repetitive movements that petitioner, having undergone a triple coronary bypass, has become incapacitated to do.

The possibility that petitioner could work as a drummer at sea again does not negate the claim for permanent total disability benefits.Â In the same case of Crystal Shipping, Inc., we held:

Petitioners tried to contest the above findings [of permanent total disability] by showing that respondent was able to work again as a chief mate in March 2001

. (citation omitted)Â

Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years.Â

The law does not require that the illness should be incurable.Â What is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability.^[56]

Â

(emphasis supplied)

That the company-designated physician did not specify that petitioner suffered from any disability should not prejudice petitioner's claim for disability benefits.Â In the first place, it is well to note that it was respondent agency which referred petitioner to the American Outpatient Clinic giving only the specific instruction that the designated physician indicate in the medical report "the estimated treatment period and the exam conducted."^[57]Â Moreover, what is important is that the facts stated in the medical report clearly constitute permanent total disability as defined by law.Â It is well-settled that strict rules of evidence are not applicable in claims for compensation and disability benefits.^[58] Disability should not be understood more on its medical significance but on the loss of earning capacity.^[59] Â As in the case of Crystal Shipping, Inc.,^[60] an award of permanent total disability benefits in the petition at bar would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.

We do not agree that petitioner's admission that he was a heavy smoker is enough ground to disqualify him from entitlement to disability compensation under Section 20(D) of the 1996 POEA SEC,viz:

Section 20.D.Â No compensation shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act, provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer.

We have held that a worker brings with him possible infirmities in the course of his employment andwhile the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability.^[61]

In the case at bar, it is noteworthy that petitioner's habit of smoking was not a consideration when private respondents hired petitioner.Â It was likewise not shown that petitioner suffered from any form of ailment prior to the heart ailment he suffered during the course of his employment with private respondents.Â While smoking may contribute to the development of a heart ailment, heart ailment may be caused by other factors such as working and living under stressful conditions. Thus, private respondents' peremptory presumption, that petitioner's habit of smoking heavily was the willful act which caused his illness and resulting disability, without more, cannot suffice to bar petitioner's claim for disability benefits.Â Ruling otherwise would run contrary to the constitutional mandate to extend full protection to labor.

Having suffered from permanent total disability, petitioner is entitled to US$60,000.00 which is the amount due for permanent total disability under Section 30-A of the 1996 POEA SEC.

As to the claim for sickness allowance, petitioner prays that private respondents be held jointly and severally liable to pay him US$3,428.00, as opposed to the award of the Labor Arbiter, as affirmed by the NLRC and the CA, of only US$3,400.00. We find this claim warranted by the undisputed fact on record that petitioner's basic salary is US$857.00 per month.^[62]Â Multiplying the 120-day sickness allowance due petitioner on the basis of the correct monthly rate of US$857.00, he should be awarded US$3,428.00 as sickness allowance.

Under Article 2208 of the New Civil Code, attorney's fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer's liability laws. Attorney's fees is also recoverable when the defendant's act or omission has compelled the plaintiff to incur expenses to protect his interest.Â Such conditions being present in the case at bar, we find that an award of attorney's fees is warranted.

IN VIEW WHEREOF, the decision and resolution of the Court of Appeals in CA-G.R. No. 67782 dated March 31, 2003 and August 14, 2003, respectively, are REVERSED and SET ASIDE.Â Private respondents are held jointly and severally liable to pay petitioner: a) permanent total disability benefits of US$60,000.00 at its peso equivalent at the time of actual payment; b) sickness allowance of US$3,428.00 at its peso equivalent at the time of actual payment; and c) attorney's fees of ten percent (10%) of the total monetary award at its peso equivalent at the time of actual payment.Â Costs against private respondents.

SO ORDERED.

Sandoval-Gutierrez, Corona, Azcuna, and Garcia, JJ., concur.

^[1] Also referred to as New Commodore Cruise Line, Ltd. in some parts of the record.

^[2] Dated March 31, 2003; rollo, pp. 28-35.

^[3] Dated August 14, 2003; Id. at 64.

^[4] CArollo, pp. 33-41.

^[5] Id. at 293.

^[6] Note that said POEA SEC has been revised by DOLE Department Order No. 4, Series of 2000 (2000 POEA SEC).

^[7] CA rollo, p. 206.

^[8] Id. at 202-204.

^[9] Id. at 48.

^[10] Id. at 88.

^[11] Id. at 89-90.

^[12] Id. at 241.

^[13] Id. at 186-187.

^[14] Id. at 190.

^[15] Id. at 36.

^[16] Id. at 190-215.

^[17] Id. at 87-91.

^[18] Id. at 44-56.

^[19] Id. at 56.

^[20] Supra note 4.

^[21] Id. at 2-28.

^[22]Rollo, p. 88.

^[23] Id. at 116.

^[24] Id. at 17.

^[25] See Chiang Kai Shek College v. CA, G.R. No. 152988, August 24, 2004, 437 SCRA 171,citing Republic v. Sandiganbayan, G.R. No. 102508, January 30, 2002, 375 SCRA 145.

^[26] Memorandum (For the Private Respondents);rollo, p. 172.

^[27] Labor Code, Art. 167(n).

^[28] See Sec. 32-A of the 2000 POEA SEC titled "Occupational Diseases."

^[29] G.R. No. 84812, October 5, 1990, 190 SCRA 337, 346-347.

^[30] The 1984 POEA SEC and 1996 POEA SEC are similarly worded.

^[31] G.R. No. 123619, June 8, 2000, 333 SCRA 236, 242.

^[32] See Arts. 1306 and 1308 of the New Civil Code; Delos Santos v. Jebsen Maritime, Inc., G.R. No. 154185, November 22, 2005, citing Lagunsad vs. Soto, No. L-32066, August 6, 1979, 92 SCRA 476.

^[33] Mayon Hotel and Restaurant v. Adana, G.R. No. 157634, May 16, 2005, 458 SCRA 609, citing Nicario v. NLRC, G.R. No. 125340, September 17, 1998, 295 SCRA 619.(citation omitted)

^[34] Id., citing Sarmiento v. Employees’ Compensation Commission, No. L-68648, September 24, 1986, 144 SCRA 421.

^[35] G.R. No. 85024, January 23, 1991, 193 SCRA 190, 195.

^[36] G.R. No. 64255, August 16, 1989, 176 SCRA 507, 511.

^[37] E.O. No. 247, Sec. 3(i) and (j).

^[38] Art. 1700, New Civil Code.Â The relations between capital and labor are not merely contractual.Â They are so impressed with public interest that labor contracts must yield to the common good.Â Therefore, such contracts are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.

^[39] G.R. No. 123891, February 28, 2001, 353 SCRA 47.

^[40] G.R. No. 134028, December 17, 1999, 321 SCRA 268, 270-271.

^[41] G.R. No. 117572, January 29, 1998, 285 SCRA 430, 436 and G.R. No. 116015, July 31, 1996, 260 SCRA 133, 138.

^[42] G.R. No. 84777, January 30, 1992, 205 SCRA 598, 602.

^[43] Ibid.,citing Ulibas v. Republic, No. L-43320, June 30, 1978, 83 SCRA 819 and Roma v. WCC, No. L-43675, October 28, 1977, 80 SCRA 170.

^[44] G.R. No. 154798, October 20, 2005.

^[45] G.R. No. 145093, July 8, 2003, 405 SCRA 450, 454.

^[46] G.R. No. 105854, August 26, 1999, 313 SCRA 141, 149-150.

^[47] Rule X.Â Temporary Total Disability

SECTION 2.Â Period of entitlement [to Temporary Total Disability Benefit]

(a) The income benefit shall be paid beginning on the first day of such disability.Â 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.Â 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; x x x

^[48] Supra note 35.

^[49] Austria v. CA, G.R. No. 146636, August 12, 2002, 387 SCRA 216, 221, citing Gonzaga v. ECC, No. L-62287, January 31, 1984, 127 SCRA 443.

^[50] Rule XI, Section 1(b) of the Amended Rules on Employees Compensation.

^[51] Supra note 44.

^[52] Ibid., citing GSIS v. Cadiz, supra note 45; Ijares v. CA, supra note 46.

^[53]Ibid., citing Philippine Transmarine Carriers, Inc. v. NLRC, supra Note 39.

^[54]Ibid., citing Bejerano v. ECC, supra note 43.

^[55] CA rollo, p. 64.

^[56]Citing GSIS v. Cadiz, supra note 45.

^[57] CA Rollo, p. 88.

^[58] Philippine Transmarine Carriers, Inc. v. NLRC, supra note 39, citing NFD International Manning Agents, Inc. v. NLRC, G.R. No. 107131, March 13, 1997, 269 SCRA 486, 494.

^[59] Supra note 39.

^[60] Supra note 44.

^[61] Seagull Shipmanagement and Transport, Inc. v. NLRC, supra, citing More Maritime Agencies, Inc. v. NLRC, G.R. No. 124927, May 18, 1999, 307 SCRA 189.

^[62] Contract of Employment and the factual findings of the Labor Arbiter, NLRC and CA; CA rollo, pp. 34, 36, 45 and 63, rollo, p. 29.

THIRD DIVISION

[G.R. No. 165934, April 12, 2006]

UNITED PHILIPPINE LINES, INC. AND/OR HOLLAND AMERICA LINE, INC.,PETITIONERS, VS.FRANCISCO D. BESERIL, RESPONDENT.

D E C I S I O N

CARPIO MORALES, J.:

Assailed in the present petition are the Court of Appeals August 31, 2004 Decision^[1] and October 28, 2004 Resolution^[2] reversing the decision of the National Labor Relations Commission (NLRC) dismissing respondent’s claim for total disability benefits.

Francisco D. Beseril (respondent) was hired by petitioner United Philippine Lines, Inc. (UPL), a Philippine manning agency, for and in behalf of its principal Holland American Lines (HAL) in 1987.Â He had since then been continuously re-hired and even became a recipient of the Holland America Line – Westours Inc. 10 Years Service Award.^[3]

On August 28, 1997, respondent was as usual rehired by UPL for its principal HAL as Assistant Cook for a period of 12 months and was assigned to the vessel M/S Rotterdam VI. Â The Contract of Employment^[4] was duly verified and approved by Philippine Overseas Employment Administration (POEA).

As part of the usual pre-employment requirements, respondent was made to undergo physical and medical examinations. Â Based on the Medical Examination Report^[5] dated August 26, 1997 issued by HAL’s designated physician Dr. Renato P. Abaya (Dr. Abaya), respondent was found to be “fit” for work as seaman.

On October 31, 1997, respondent, in accordance with his employment contract, boarded M/S Rotterdam VI.

While on duty or on December 5, 1997, respondent complained of chest pains and difficulty in breathing.Â He was thus brought to the ship’s infirmary and was thereafter brought ashore for immediate medical treatment.

Respondent was later confined at the Broward General Hospital in Fort Lauderdale, Florida where he underwent a triple heart by-pass.

Respondent was not able to rejoin his vessel of assignment, necessitating the hiring of another assistant cook to replace him.^[6] Â On December 20, 1997, he was officially discharged from duty.

As respondent’s condition was not yet stable for repatriation, he stayed for a while at the Holiday Inn, Florida until he was allowed to fly back to Manila on January 8, 1998.

Upon his arrival in Manila, respondent was referred to Clinica Manila under UPL’s account where he underwent regular cardiac rehabilitation program and physical therapy from January 15 to May 28, 1998.^[7]

Based on the Medical Certificate^[8] dated September 22, 1998 issued by Dr. Ma. Victoria V. Tangco, Medical Consultant of Clinica Manila, respondent was recommended to be “fit to return to work.”

Sometime in November 1998, as respondent wanted to revert to his old job, he again underwent a pre-employment medical examination with the American Outpatient Clinic. Â This time, he was found to be “unfit” per Physical Examination Report/Certificate^[9] issued by Dr. Leticia C. Abesamis dated November 19, 1998.

On November 27, 1998, since the pre-employment screening doctors of UPL refused to give medical clearance to respondent, HAL’s hotel and restaurant manager Diogenes Rosauro B. Jaurigue (Jaurigue), who was responsible for the recruitment of the hotel crew, sought instructions from HAL through telex regarding respondent’s case. The telex message read:

SUBJECT: ASST. COOK FRANCISCO BESERIL
Â Â Â Â Â Â Â Â Â Â Â Â Â REHIRING OR DECLARATION OF DISABILITY

WITH REFERENCE TO THE CREWMEMBERS ABOVE CAPTIONED WE WOULD LIKE TO ASK FOR A FINAL DISPOSITION ON THE EVENTUAL FATE OF MR. FRANCISCO BESERIL.

CONSIDERING THAT HE HAS UNDERGONE HEART BYPASS SURGERY AND HAS HAD ALMOST ONE YEAR RECOVERY, THE SUBJECT DESIRES TO REVERT BACK TO HIS FORMER JOB ON BOARD YOUR VESSELS.

ALTHOUGH, THE SUBJECT MAY ACTUALLY PERFORM HIS FORMER DUTIES WITHOUT ANY PROBLEM, OUR-PRE-EMPLOYMENT SCREENING DOCTORS DO NOT WANT TO TAKE THE RISK IN CERTIFYING HIM FIT FOR SEA DUTY. Â THEY ADDED THAT SHOULD HAL AGREE TO RE-EMPLOY THE SUBJECT, IT WILL BE AT HAL’S RISK.

IN VIEW OF THE FOREGOING, MAY WE KNOW WHETHER YOU ARE STILL ENGAGING THE SUBJECT OR PUTTING HIM ON PERMANENT DISABILITY.

x x x x

^[10]

(Emphasis and underscoring supplied)

In a correspondence dated January 13, 1999, Dr. Carter Hill of HAL’s Medical Department declared respondent “permanently unfit.”^[11]

UPL soon received by fax a letter^[12]dated February 18, 1999 from respondent’s lawyer demanding compensation for total permanent disability. Â The pertinent portion of the letter read, quoted verbatim:

Several months after his treatment and repatriation, Mr. Beseril was made to believe and expect that he would be rehired but up to now he cannot be reinstated to his former occupation. Â In fact, Mr. Francisco L. Beseril has already been considered and pronounced to be totally and permanently unfit to discharge his former sea based occupation and as a consequence thereof, the attending physician strongly suggested/recommended that Mr. Beseril retire permanently as a seaman.

Under the POEA Standard Employment Contract and the CBA, our client is entitled to disability pay of no less than the full amount of Sixty Thousand US Dollars (USD60,000.00), for the total loss of his earning capacity.

Therefore, a formal demand is hereby made upon your goodselves and your principal to pay our client in the amount of USD60,000.00 within ten (10) calendar days from your receipt of this letter.

Should we not hear from you within the stated period, we shall commence legal actions against you and your principal without further notice to recover the full amount of USD60,000.00 plus moral damages, attorney’s fees and costs of suit.

We trust that you find this claim in order and look forward to an early settlement of the same.

^[13]

The letter was transmitted by fax to HAL which sent a reply by telex on the same day, the pertinent portion of which is quoted hereunder:

IN MR. JARIGUE’S NOVEMBER 27 1998 CORRESPONDENCE REFERENCE NUMBER 08-98 HE WAS INQUIRING OF THE COMPANIES FINAL DECISION. Â IN CARTER HILL’S 1/13/99 CORRESPONDENCE

HEDECLAREDMR.BESERILPERMANENTLY UNFIT

NOT PERMANENTLY DISABLED. Â THIS DISTINCTION WOULD MEAN A PARTIAL DISABILITY NOT PERMANENT.

PLEASE DETERMINETHE PARTIALDISABILITYPERCENTAGESOWEMAY FURTHERDISCUSSTHENEXTSTEP

.

^[14]

On March 19, 1999, UPL sent a letter^[15] to respondent’s counsel referring respondent for evaluation and determination of the degree of disability to its designated physician Dr. Abaya.

After reviewing respondent’s medical records and physically examining him, Dr. Abaya sent a letter^[16]dated April 6, 1999 to UPL’s legal department, which was transmitted by telex to HAL, reading:

I have examined Mr. Francisco Beseril and find him

inrelativelygoodhealth.

Â I have consulted the people who supervised his cardiac rehabilitation and they have assured me based on their ECG and Treadmill findings that Mr. Beseril is in good health and fit for work.

Mr. Beseril claims he cannot get a job because his physical examination shows that he has had a coronary bypass and that all employment opportunities are therefore closed to him. No employer wants to employ him with a possible “recurrence” of his coronary problems.Â (Underscoring supplied)

After respondent’s medical records were sent to HAL, Dr. Hill sent the following message dated April 21, 1999 to UPL through Dr. Abaya:

UPON REVIEW OF THE PACKET OF MEDICAL RECORDS YOU HAVE SENT TO US ON THE ABOVE MENTIONED CREWMEMBER, I HAVE THE FOLLOWING COMMENTS:

HE IS FIT FOR SEA DUTY AS A COOK.

I NOTE HE HAS LOST 10 KG AND HAS A NORMAL BP AND TREADMILL ON 9/98. Â PLEASE ENCOURAGE HIM TO STOP SMOKING, EXERCISE REGULARLY, AND TRY TO REACH HIS OPTIMAL WEIGHT. Â ADDITIONALLY, I NOTE HIS URINE IS SPILLING SUGAR, AND I SUSPECT A[N] ORAL HYPOGLYCEMIC IS INDICATED TO CONTROL HIS BLOOD SUGAR LEVELS. Â HIS SUGARS CAN BE MONITORED AT SEA DURING HIS NEXT CONTRACT TO ENSURE IMPROVEMENT. Â DON’T HESITATE TO CONTACT ME IF I CAN BE OF FURTHER ASSISTANCE.

^[17]

Â (Underscoring supplied)

With HAL’s decision that respondent was “fit for sea duty as a cook,” the legal department of UPL, by its claim, spoke to him and that after explaining the consequences and implications of the options he had, he and his counsel agreed that he would serve again at HAL’s vessels.Â Respondent, however, never showed up at HAL’s office for re-employment.

On September 1, 1999, respondent filed a complaint^[18] with the NLRC against UPL and HAL claiming disability benefits, loss of earning capacity, moral and exemplary damages and attorney’s fees.

During the March 13, 2000 hearing before a Labor Arbiter, the parties agreed to submit the case for resolution on the basis of the pleadings.

By Decision^[19] dated April 28, 2000, the Labor Arbiter awarded respondent total disability benefits in the amount of $60,000, ruling that “his disability ha[ving] lasted [for] more than 120 days is sufficient basis to declare him permanently disabled.”

Before the NLRC to which UPL and HAL (hereafter petitioners) appealed, they raised the following arguments:

There was grave abuse of discretion in awarding permanent total disability of US$ 60,000.00 in favor of [respondent] despite the overwhelming evidence of the findings of fitness by the company appointed physician specifically engaged to do the said task pursuant to the POEA Standard Employment Contract.

It is a grave error to cite the cases of Loot vs. GSIS, 224 SCRA 59 in relation to Aquino vs. ECC, 201 SCRA 84 in deciding this case that involves a POEA Standard Employment Contract for Seafarers controversy.

The 120 days under Article 192 (c) (1) of the Labor Code should not be used as a reckoning point to establish disability under the POEA Standard Employment Contract.^[20]Â (Underscoring supplied)

Finding petitioners’ appeal meritorious, the NLRC, by Decision^[21] dated August 30, 2002, “MODIFIED” the Labor Arbiter’s decision by deleting the award of total disability benefit and ordering petitioners to deploy respondent to one of its foreign principals for the same position.

In granting [respondent’s] claim for total disability benefit, the Labor Arbiter gave merit to a report dated 27 November 1998 sent by Dax B. Jaurigue, respondent’s Hotel and Restaurant Manager for the Holland America Line Crewing Department. In said report, Mr. Jaurigue stated that although complainant may actually perform his former duties without any problem, [petitioners’] pre-employment screening doctors do not want to take the risk in certifying him fit for sea duty an[d] that should [petitioner] HAL agree to employ the subject, it will be at HAL’s risk. The Labor Arbiter also held that since complainant’s disability lasted more than 120 days, the same is sufficient basis to declare him permanently disabled. We do not agree. Records show that [petitioners’] company designated physician, Dr. Renato Abaya physically examined [respondent] sometime in March 1999, several months after the report of Mr. Jarigue was done. In this connection, said

Dr.Abayaissuedareport dated6April1999statingthat[respondent]wasingoodhealthandfitforwork. Dr.Abayaalsoexecutedanaffidavitwhereinheattestedthat[respondent]isfit forseadutyasacook

. Â It is for this reason that [petitioners] were preparing to process [respondent’s] new employment contract. Â

[Respondent]neverrefuted thefactthat[petitioners]offeredtorehirehimtohisformerposition.

Â

Healsodid notdenythatherefusedtoaccepttheofferofemploymentmadebythe [petitioners].

We have likewise taken note that the illness of [respondent] required more than 120 days of treatment and rehabilitation. Â [Petitioners] contend they continued to shoulder the expenses for [respondent’s] treatment and rehabilitation. Â This was admitted by [respondent] in his Rejoinder when he recognized the financial assistance extended to him by [petitioners]. Â In this connection, the Labor Arbiter held that since [respondent’s] disability lasted more than 120 days, there is sufficient basis to declare him disabled citing Aquino vs. ECC (201 SCRA 84). We do not agree. Â

The 120days periodreferredtoin thePOEA Standard EmploymentContractforSeafarers refers tothemaximumliabilitythatmaybe grantedforsicknessallowance.

Â

Itisnotameasurethatcoulddeterminethe employee’sdegree of disability.

Â Moreover, [respondent’s] employment is covered by the POEA Standard Employment Contract. Â The POEA benefits under said contract are separate and distinct from those benefits provided under the Employees Compensation Commission, the SSS or GSIS. Â The provisions thereof should be the law between the contracting parties.

The foregoing circumstances being considered,

[respondent]wasfound tohave beencuredorrecoveredfromhis illnessasdeterminedbythecompany designatedphysician

as he was declared fit to work for the same job he held prior to his illness. The job was offered to complainant by respondents which is proof that he did not lose his earning capacity.

Accordingly, we deem it proper to delete the award of total disability benefit. However, [respondent] is not left holding an empty bag. In this connection, [petitioners] are directed to deploy [respondent] within a reasonable period to one of its foreign principal for the same position he held prior to his illness.

WHEREFORE, the decision dated 28 April 2000 is

MODIFIED

. Â

Theaward oftotaldisabilitybenefitintheamountofUS$60,000.00isdeleted.

Â

[Petitioners] areorderedtodeploy[respondent]tooneofitsforeignprincipal[s

]

forthesame position.^[22]

Â (Emphasis and underscoring supplied)

Respondent moved to reconsider the decision of the NLRC but the same was denied by Resolution^[23] dated October 30, 2002.

In his petition for certiorari^[24] before the Court of Appeals, respondent raised the following issues:

[1.] WHETHER OR NOT A FIFTY THREE (53) YEAR OLD SEAFARER WHO HAD UNDERGONE A TRIPLE BY-PASS OPERATION CAN BE CONSIDERED AS ONCE AGAIN FIT TO WORK ON BOARD AN OCEAN GOING VESSEL, JUST BECAUSE THE COMPANY DESIGNATEDÂ PHYSICIAN SAY SO[.]

[2.] DOES AN OFFER TO WORK ON BOARD AN OCEAN GOING VESSEL TO A FIFTY THREE (53) YEAR OLD SEAFARER WHO SUFFERED AND UNDERGONE TRIPLE BY-PASS OPERATION ABSOLVE THE EMPLOYER’S LIABILITY FOR DISABILITY COMPENSATION[?]

^[25]

By Decision^[26] dated August 31, 2004, the appellate court reversed that of the NLRC, ratiocinating as follows:

While

theDoctorsRenatoAbayaandCarterHillthereaftercertifiedthat [respondent]isphysicallyfitto workagain

,

Wenote thatthisoccurredonlyafter [respondent]hadalreadyfiledaclaimforpermanentdisability.

Â We cannot but agree with the [respondent] that with the proliferation of obviously biased company doctors whose loyalty rest completely upon the company they serve, their findings cannot be taken as gospel truth.

In Wallem Maritime Services v. NLRC,

[the] High Tribunal had this to say:

“x x x (The)

opinion

s

ofpetitioner’sdoctorstothiseffectshouldnotbegiven evidentiaryweightastheyarepalpablyself-servingandbiased infavorof petitioners,

and certainly could not be considered independent.”

Under Bureau Circular No. 5, Series of 1990, issued by the Department of Health to medical clinics and hospitals accredited to conduct medical examination of overseas contract workers and seafarers, those with ECG findings like myocardial ischemia, [infarction], 2nd and 3rd degree AV Block and other grave manifestation xxx and other illnesses which render the worker unemployable should be classified as Class D or unemployable.

The circular leaves Us no choice but to conclude that

[respondent]isnolonger employableconsideringthekindof ailmenthesufferedandcontinuestosuffer.

Â We give judicial notice to the fact that no one fully recovers from a massive heart attack, and a person who has had a heart condition and has already suffered a heart attack is in danger of another attack anytime and absent any warning. Â [Respondent] therefore cannot be blamed if he is more cautious about his health and has become loathe to be deployed again. It should be remembered that [respondent] here is already 53 years old and has undergone a triple bypass operation during the term of his contract. Â

Hismedicalconditionrendershim unemployableascookinaseafaringvessel.Itisalsoimportanttonotetha

t

such ailmentmayhave been, inallprobability,contractedduringhisemploymentwith [petitioner].

Â And being such, he should not have been issued a work certification by company designated. His disability persists up to this very day and there is no showing that by some miracle, he has fully recovered from his ailment.

In Wallem Maritime Services, Inc. v. NLRC,

the Supreme Court had occasion to rule:
“The POEA Standard Employment Contract is designed primarily for the protection and benefit of Filipino seamen in the pursuit of their employment on board ocean-going vessels. Its provisions must, therefore, be construed and applied fairly, reasonably and liberally in favor or for the benefit of the seamen and their dependents. Â Only then can its beneficent provisions can be fully carried into effect.”
It is meet to point out that the Standard Employment Contract is not a limitation but a guaranteed protection to overseas contract workers.

4. That having been said, We find and so hold that there is

nonecessityfor petitionertoseektheopinionofathirddoctor

pursuant to his employment contract, as it is very clear that it is not possible for [respondent] to go back to work. We take judicial knowledge of the fact that a cook’s job is not exactly a walk in the park. A cook is exposed to constant heat and smoke, and the job may entail laborious manual tasks. In the case at bench, there is no disputing that [respondent] suffered a massive heart attack while pushing a rack of glass. What makes the job all the more difficult is that it is conducted in a moving ship, which makes for increased work-related stress. All these factors may exacerbate [respondent’s] heart condition and expose him to the possibility of another attack. [Respondent’s] refusal to go back to work and instead claim permanent disability benefits could not thus be considered unreasonable and impelled by nothing but greed but rather,Â justified by [respondent’s] health considerations and a natural desire of every person to preserve his life for as long as possible. For being human, [respondent] should not be penalized.

^[27]

Â (Emphasis and underscoring supplied)

Petitioners’ Motion for Reconsideration having been denied,^[28] the present petition was filed faulting the appellate court in

A.

x x x FINDING THAT RESPONDENT’S PETITION FOR CERTIORARI WAS SUFFICIENT IN FORM AND SUBSTANCE IN COMPLIANCE WITH SECTION 1, RULE 65 OF THE 1997 RULES OF CIVIL PROCEDURE.

B.

. . . AWARDING PERMANENT DISABILITY BENEFITS TO RESPONDENT IN LIGHT OF THE PROVISIONS OF THE POEA STANDARD CONTRACT.

C.

. . . APPLYING THE “

THIRD DOCTOR CLAUSE”

OF THE POEA STANDARD CONTRACT.

D.

. . . FINDING THAT THE “RELEASE AND QUITCLAIM” EXECUTED AND SIGNED BY RESPONDENT IS NOT PROOF THAT THE LATTER HAS RECEIVED ALL BENEFITS TO WHICH HE IS ENTITLED.

^[29]

Petitioners argue that, among other things, the provisions on disability benefits operate only upon certification by the company-designated physician that the claiming seafarer is indeed disabled, hence, respondent is not eligible for an award of disability benefits as “he was certified fit for sea duty after the conduct of the last medical examination,” and the finding of the American Outpatient Clinic during his pre-employment medical examination that respondent was unfit for sea duty, which finding was concurred in by Dr. Hill of HAL, was merely “initial.”

Petitioners go on to argue that the significance of the findings of the company-designated physician cannot just be disregarded by an all-encompassing statement motivated by the excessive compassion for seafarers, for the POEA Standard Contract clearly provides that it is solely the company-designated physician who shall determine the fitness or degree of disability or injury of a seafarer for purposes of employment;Â and if respondent did not agree with the findings of the company-designated physician, he could have sought an opinion of a physician to rebut it.

The petition is bereft of merit.

Section 20 B, paragraph 3 of the POEA Standard Employment Contract reads:

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.^[30](Emphasis supplied)

Contrary to petitioners’ argument, the findings of the company-designated physician were not disregarded. Â As gathered from the records of the case, two company-designated physicians, Dr. Abesamis of the American Outpatient Clinic and HAL’s Dr. Hill, found respondent to be unfit for sea duty. Â It was on the basis of such finding that respondent anchored his claim for disability benefits. There was no reason for respondent to seek the opinion of another physician because he was not contesting Doctors Abesamis and Hill’s identical finding.

Petitioners’ allegation that the diagnosis of respondent being “unfit” was merely “initial” fails.Â In HAL’s correspondence with ULP on March 16, 1999, it reiterated its declaration that respondent was “permanently unfit” and even asked ULP to determine the partial disability percentage, it positing that permanent unfitness is different from permanent disability.

Notatu dignum is the correct observation of the appellate court in its above-quoted portion of its decision that it was only after respondent had filed a claim for permanent disability that Doctors Abaya and Hill declared him fit for sea duty.

But even in the absence of an official finding by the company-designated physicians that respondent is unfit for sea duty, respondent is deemed to have suffered permanent disability. Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether he loses the use of any part of his body.^[31] Â It is undisputed that from the time respondent suffered a heart attack on December 5, 1997, he was unable to work for more than 120 days, his cardiac rehabilitation and physical therapy having ended only on May 28, 1998.

That respondent was found to be “fit to return to work” by Clinica Manila (where he underwent regular cardiac rehabilitation program and physical therapy from January 15 to May 28, 1998 under UPL’s account) on September 22, 1998 or a few months after his rehabilitation does not matter. Â Crystal Shipping Inc., v. Natividad^[32] teaches:

Petitioners tried to contest the above findings by showing that respondent was able to work again as a chief mate in March 2001. Nonetheless, this information does not alter the fact that as a result of his illness, respondent was unable to work as a chief mate for almost three years. It is of no consequence that respondent was cured after a couple of years. Â

Thelawdoesno

t

requirethatthe illnessshouldbeincurable.

Â

Whatisimportantisthathewasunabletoperform hiscustomaryworkformorethan120 dayswhich constitutespermanenttotal disability.

Â An award of a total and permanent disability benefit would be germane to the purpose of the benefit, which is to help the employee in making ends meet at the time when he is unable to work.Â (Underscoring supplied)

WHEREFORE, the petition isDENIED.

Costs against petitioners.

SO ORDERED

Quisumbing, (Chairperson), Carpio, Tinga, andVelasco, Jr. JJ., concur.

^[1] Penned by Justice Romeo A. Brawner and concurred in by Justices Mariano C. del Castillo and Magdangal M. de Leon, Court of Appeals (CA) rollo, pp. 330-337.

^[2] CA rollo, p. 378.

^[3] National Labor Relations Commission (NLRC) records, p. 28.

^[4] Id. at 5.

^[5] Id. at 29.

^[6] Id. at 30.

^[7] Id. at 32-37.

^[8]Id. at 37.

^[9] Id. at 38.

^[10] Id. at 85.

^[11] Id. at 90.

^[12]Id. at 86-87.

^[13] Id. at 87.

^[14]Id. at 90.

^[15] Id. at 91.

^[16] Id. at 92.

^[17] Id. at 99.

^[18] Id. at 3.

^[19] Id. at 141-146.

^[20] Id. at 154.

^[21] Id. at 310-316.

^[22]Id. at 314-316.

^[23] Id. at 342-343.

^[24] CA rollo, pp. 2-23.

^[25] Id. at 9.

^[26] Id. at 330-337.

^[27] Id. at 334-336.Â (Citation omitted)

^[28]Id. at 378.

^[29] Rollo, pp. 19-20.

^[30] CA rollo, p. 228.

^[31] Crystal Shipping Inc., v. Natividad. G.R. No. 154798, October 20, 2005 citing Gov’t. Service Insurance System v. Cadiz, 453 Phil. 384, 389-390 (2003).

^[32] Ibid.

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