Vous êtes sur la page 1sur 32

10. Marlow Navigation v.

Ganal, June 7, 2017


G.R. No. 220168, June 7, 2017
Peralta, J.:

FACTS:
Marlow Navigation employed Ricardo Ganal (Ganal) as an oiler aboard the vessel MV
Stadt Hamburg in accordance with the provisions of the Philippine Overseas Employment
Administration (POEA)-Standard Employment Contract, which was executed by and between
the parties.
Around 7 o'clock in the evening of April 15, 2012, a party was organized for the
crewmen of MV Stadt Hamburg while the ship was anchored at Chittagong, Bangladesh. After
finishing his shift at 12 midnight, Ganal joined the party. Around 3 am, the ship captain noticed
that Ganal was already drunk. He directed him to return to his cabin and take a rest, which Ganal
ignored.
Thus, some crew members were summoned to escort Ganal to his cabin. They attempted
to accompany him back to his cabin but he refused. They then tried to restrain him but he
resisted and when he found a chance to escape, he ran towards the ship’s railing and, without
hesitation, jumped overboard and straight into the sea.
The crew members tried to save and search for him but to no avail. Ganal was later found
dead and floating in the water. The medico-legal report showed that the cause of his death was
asphyxia by drowning.
Subsequently, Ganal’s wife Gemma Boragay, , for herself and in behalf of their minor
children, filed with Marlow Navigation the recovery of death benefits. Her claim however, was
denied by Marlow Navigation. Thus, Boragay filed with the NLRC a complaint for the recovery
of death and other benefits,unpaid salaries for the remaining period of Ganal’s contract as well as
moral and exemplary damages.
LA Ruling: Dismissed complaint for lack of merit. The LA held that the Heirs of
Ganal’s allegations are self-serving and hearsay. On the other hand, Marlow were able to present
documentary evidence, consisting of affidavits of Ganal’s fellow crew members who have direct
and actual knowledge of what occurred on board the MV Stadt Hamburg and who attested to the
fact that Ganal willfully jumped on board.
NLRC Ruling: Affirmed decision of LA. Ganal’s death is not compensable as it was the
result of the deliberate and willful act of Ganal and thus directly attributable to him .Heirs of
Ganal filed a Motion for reconsideration but NLRC denied the same. They then filed a petition
for certiorari with the CA.
CA Ruling: Reversed decision of NLRC. CA Ruled that Ganal jumped into the sea while
he was completely intoxicated and deprived of his consciousness and mental faculties to
comprehend the consequence of his own actions and keep in mind his own personal safety.

ISSUE:

1
WON a seafarer who was heavily intoxicated during a ship sponsored party who later
jumped off the ship and drowned is entitled to compensation

RULING:
Under the Standard Terms and Conditions Governing the Overseas Employment of
Filipino Seafarers On-Board Ocean-Going Ships, as amended, the death of a seafarer by reason
of any work-related injury or illness during the term of his employment is compensable.
However, Section 20(D) of the same Standard Terms and Conditions states that:
D. No compensation and benefits shall be payable in respect of any injury, incapacity, disability
or death of the seafarer resulting from his willful or criminal act or intentional breach of his
duties, provided however, that the employer can prove that such injury, incapacity, disability or
death is directly attributable to the seafarer.

In the present case, it may be conceded that the death of Ganal took place in the course of
his employment, in that it happened at the time and at the place where he was working. However,
the accident which produced this tragic result did not arise out of such employment.
The occasion where Ganal took alcoholic beverages was a grill party organized by the
ship officers of MV Stadt Hamburg. It was a social event and Ganal attended not because he was
performing his duty as a seaman, but was doing an act for his own personal benefit.
Even if the Court were to adopt a liberal view and consider the grill party as incidental to
Ganal’s work as a seaman, his death during such occasion may not be considered as having
arisen out of his employment as it was the direct consequence of his decision to jump into the
water without coercion nor compulsion from any of the ship officers or crew members.
The hazardous nature of this act was not due specially to the nature of his employment. It
was a risk to which any person on board the MV Stadt Hamburg, such as a passenger thereof or
an ordinary visitor, would have been exposed had he, likewise, jumped into the sea, as Ganal
had.
The necessary question that follows then is whether Ganal’s act was willful. Considering
his apparent intoxication, may Ganal’s death, which resulted from his act of jumping overboard,
be considered as directly attributable to him?
The Court agrees with the LA and the NLRC that the pieces of evidence presented by
petitioners, consisting of the testimony of the crew members present at the time of the
unfortunate incident, as well as the accident report made by the master of the vessel, prove the
willfulness of Ganal’s acts which led to his death.
The term “willful” means “voluntary and intentional”, but not necessarily malicious.
In the case of Mabuhay Shipping Services, Inc. v. National Labor Relations Commission,
271 Phil. 142, 147 (1991), the seaman, in a state of intoxication, ran amuck and committed an
unlawful aggression against another, inflicting injury on the latter, so that in his own defense the
latter fought back and in the process killed the seaman. This Court held that the circumstances of

2
the death of the seaman could be categorized as a deliberate and willful act on his own life
directly attributable to him.
In the same manner, in the instant case, Ganal’s act of intentionally jumping overboard,
while in a state of intoxication, could be considered as a deliberate and willful act on his own life
which is directly attributable to him. Hence, not compensable.

3
11. Seapower Shipping v. Subanal, G.R. No. 198544, June 19, 2017

FACTS:
Petitioner Seapower Shipping Enterprises, for and in behalf of its principal Westward
Maritime Corporation, hired Warren M. Sabanal as Third Mate onboard MT Montana on July
20, 1995. In September 1995, Sabanal started exhibiting unusual behavior. When the ship
captain checked on him on Sept. 22, 1995, he responded incoherently, though it appeared that he
had problems with his brother in the Philippines. This prompted the captain to set double guards
on Sabanal. The sailors watching over Sabanal reported that he wanted to board a lifeboat, citing
danger in the ship’s prow. Because of Sabanal’s condition, the captain relieved him of his shift
and allowed him to sleep in the cabin guarded. The following day, the captain wanted to
supervise Sabanal better, so he took him on deck and assigned to him simple tasks. The captain
observed that Sabanal’s condition was “rather better” and he “did not appear to have any
problems.” Later that day, Sabanal requested the sailor-on-guard that he be allowed to return to
the deck for some fresh air. Once on deck, Sabanal suddenly ran to the stem and jumped to the
sea. His body was never recovered.
Though she was informed of her husband’s death, Elvira Sabanal alleged that Seapower
told her that she has to wait for a period of seven to ten years before Sabanal can be declared
dead. Relying on this representation, she went back to Seapower sometime in late 2004 or early
2005 to claim whatever benefits she was entitled to. On May 16, 2005, she filed a complaint for
payment of Sabanal’s death benefits.
The LA dismissed Elvira’s case on the grounds of prescription and lack of merit, ruling
that Elvira filed to substantiate her claim that Seapower misled her to wait for seven to ten years;
thus, her claim was already barred by the statute of limitations. The LA also ruled that Sabanal’s
death was due to his taking his own life, thus, not compensable. The NLRC affirmed the LA’s
dismissal, though finding that the action had not prescribed.
The CA reversed the NLRC, concluding that “his actions were borned not by his willful
disregard of his safety and of his life, but, on the contrary, he became paranoid that the ship was
in grave danger, that he wanted to save himself from the imagined doom that was to befall the
ship.”

ISSUE:
Whether or not Sabanal’s death is compensable

HELD:
NO. In order for insanity to prosper as a counter-defense, the claimant must substantially
prove that the seafarer suffered from complete deprivation of intelligence in committing the act
or complete absence of the power to discern the consequences of his action. Mere abnormality of
the mental faculties does not foreclose willfulness.

4
Elvira did not present any evidence to support her claim that Sabanal was already insane
when he jumped overboard. Similar to the claimant in Agile, she only relied on the strange
behavior of Sabanal as detailed by the ship captain in the ship log and master's report. However,
as we already held, while such behavior may be indicative of a possible mental disorder, it is
insufficient to prove that Sabanal had lost full control of his faculties.
In fact, the ship log shows Sabanal was still able to correct maps and type the
declarations of the crew hours before he jumped overboard. The captain observed that Sabanal
did not appear to have any problems while performing these simple tasks, while the sailor-on-
guard reported that Sabanal did not show any signs of unrest immediately before the incident.
These circumstances, coupled with the legal presumption of sanity, tend to belie Elvira's claim
that Sabanal no longer exercised any control over his own senses and mental faculties.

5
12. GSIS v. Pauig, January 30, 2017

FACTS:
Pauig, respondent herein, was the Municipal Agriculturist of San Pablo, Isabela. He
started in the government service as a contractual employee from February 12, 1964. Later on, he
became a temporary employee from July 5, 1972 to July 18, 1977. A day after, he became a
permanent employee. Finally, on August 1, 1977, he became a GSIS member. When Pauig
reached the age of 65 on November 3, 2005, he retired from service.
His complaint in this action was that the GSIS-Cauayan erroneously computed his years
of service, excluding the 14 years that he has rendered and only including in the computation the
years that he became a member of the organization, 27 years to be specific.
GSIS reasoned that the exclusion of the 14 years was because no premium payments
were remitted to it. Moreover, under the Premium-Based Policy of the GSIS, which took effect
on August 1, 2003, only the periods of service where premium payments were duly remitted to
the System shall be incluses in the computation of retirement benefits.
Aggrieved, respondent filed the action to the RTC of Cabagan, Isabela. The Court
directed GSIS to credit respondent's service from 1964 to 1977. The former filed for a motion for
reconsideration but was denied. Hence, this present petition.

ISSUE:
Whether or not Pauig's 14 years of service must be included in the computation of his
retirement benefits.

HELD:
No. Pauig insists that retirement laws must be liberally construed in favor of the retirees
because the intention is to provide for their sustenance, and hopefully even comfort, when they
no longer have the stamina to continue earning their livelihood. However, upon checking
relevant laws, compulsory coverage under the GSIS had previously and consistently included
regular and permanent employees, and expressly excluded casual, substitute or temporary
employees from its retirement insurance plan. The Court must deny Pauig' s appeal to liberal
construction since the applicable law is clear and unambiguous. The primary modality of
addressing the present case is to look into the provisions of the retirement law itself. Guided by
the rules of statutory construction in this consideration, the Court finds that the language of the
retirement law is clear and unequivocal; no room for construction or interpretation exists, only
the application of the letter of the law. Therefore, Pauig' s casual and temporary service in the
government from February 12, 1964 to July 18, 1977.

6
13. CF Sharp Crew Management, Inc vs. Castillo
GR No. 208215; April 19, 2017
FACTS:
On June 6, 2008, respondent Rhudel Castillo was hired by petitioner C.F. Sharp
Crew Management on behalf of its foreign principal, petitioner Norwegian Cruise Line,
Ltd., to serve as Security Guard on board the vessel MV Norwegian Sun under the
Contract of Employment, for a period for a period of ten (10) months, with a basic
monthly salary of US$559.00.
While on board the vessel, respondent suffered from difficulty of breathing and
had a brief seizure attack causing him to fall from his bed. It was found that respondent
was suffering from "right parietal hemorrhage" of the brain and was given medications to
prevent seizures.
On October 7, 2008, respondent was repatriated. He was referred to the company-
designated physicians, Dr. Susannah Ong-Salvador and Dr. Antonio A. Pobre for further
treatment, evaluation and management.
Dr. Ong-Salvador issued a Medical Progress Report stating that respondent is
suffering from "right parietal cavernoma" and the condition is deemed to be idiopathic,
thus, it is not work-related.
Dr. Pobre issued a Certification indicating that respondent is suffering from
Cavernoma and the illness is a congenital disorder and not work-related.
Petitioners shouldered all the expenses in connection with respondent’s medical
treatment.
On December 16, 2009, respondent filed a complaint for permanent and total disability
benefits, damages and attorney’s fees.
Respondent alleged that he is entitled to a maximum disability compensation of
US$120,000.00 under the Norwegian Collective Bargaining Agreement (CBA). Respondent
further alleged that even after all the examinations, he is still suffering from the illnesses
and is disabled up to the present.
Labor Arbiter Elias Salinas dismissed the complaint. The LA opined that while the illness
of respondent is disputably presumed to be work-related, petitioners have substantially disputed
the presumption of work-connection with the submission of a certification from the company
physicians categorically stating that respondent’s illness is idiopathic and congenital in etiology,
and as such, could not have been caused by working conditions aboard the vessel.
NLRC affirmed the decision of the Labor Arbiter.
CA reversed the Decision of the NLRC. The CA held that petitioners have not
overcome the disputable presumption of work-relatedness of the disease due to the
conflicting statements of the petitioners' physicians as to the cause of respondent's illness

ISSUE:
Whether or not the respondent is entitled to total and permanent disability benefits

7
HELD:
The Court ruled that the respondent is not entitled to total and permanent disability
benefits for his failure to refute the company-designated physician’s findings that his illness was
not work-related.
While it is true that medical reports issued by the company-designated physicians
do not bind the courts, their declaration should be given credence, considering the amount of
time and effort they gave to monitoring and treating the respondent’s condition. The respondent
was evaluated by a specialist, neurosurgeon Dr. Allied Tan. The series of tests and
evaluations show that Dr. Ong-Salvador's findings were not arrived at arbitrarily; neither
were they biased in petitioner's favor. On the other hand, it is obvious in the report of
Dr. Vicaldo, respondent’s physician, that he only saw respondent once and did not perform
any sort of diagnostic test or examination on respondent.
From the foregoing, considering that the company-designated physicians closely
monitored respondent from his repatriation, and considering further that respondent did not
observe the third-doctor referral provision, We adopt the ruling of the NLRC.
Bare statement that "His illness is considered work aggravated/related," without any
explanation as to the same, could not even begin to prove that complainant's illness is
work-related, much less overcome the findings of the company-designated physicians
Likewise, the mere fact that complainant's disability exceeded 120 days, by itself,
is not a ground to entitle him to full disability benefits. While the law recognizes that an
illness may be disputably presumed to be work-related, the seafarer or the claimant must
still show a reasonable connection between the nature of work on board the vessel and
the illness contracted or aggravated.
Respondent did not adduce proof to show a reasonable connection between his
work as Security Guard and his cavernoma.

8
14. Dionio v. Transglobal Martime, November 19, 2018

FACTS:
Henry Dionio was engaged by Trans-Global Maritime Agency, Inc. as Bosun on board a
vessel. On February 25, 2011, Dionio experienced dizziness, slurred speech, chest pain,
difficulty in breathing, repeated vomiting and minor loss of strength in his right hand. He was
then diagnosed with a "possible transient Ischaemic Attack/Labyrinthitis." On March 8, 2011, he
was repatriated to the Philippines and was referred to the Metropolitan Medical Center (MMC)
for further evaluation and treatment. Dionio's last diagnosis was "Bilateral Cerebellar Infarct"
with a disability grading of 10.
On November 10, 2011, Dionio filed a complaint against Trans--Global, Goodwood and
Michael Estaniel (hereafter "respondents") for permanent disability benefits, as well as actual,
moral and exemplary damages, plus attorney's fees.
On March 14, 2012 Dionio consulted Dr. Pascual of Philippine Heart Center who
concluded that he was medically unfit to work as seaman.
LA ordered respondents to jointly and severally pay Dionio US$10,075.00 representing
disability benefits based on a grade 10 disability rating. The claims for actual, moral and
exemplary damages as well as attorney's fees were denied for lack of basis.
NLRC reversed the LA and awarded total and permanent disability benefits in the
amount of US$89,100.00, plus attorney's fees equivalent to 10% of the monetary award.
CA reversed and set aside NLRC’s resolution and reinstated LA’s decision.
Dionio argues the following:
1. It is not mandatory to appoint a third physician to resolve a conflict of findings between
the company-designated physician and the doctor chosen by the seafarer. The assessment
of a company-designated physician may be disputed by the opinion of a physician chosen
by the seafarer. The option of engaging the opinion of a third doctor is merely directory
and not mandatory.
2. Dionio cites the Philippine Overseas Employment Agency's (POEA) Contract which
recognizes the prerogative of a seafarer to request a second opinion and consult a
physician of his choice.
3. The Resolutions of the CA are contrary to the test of permanent total disability, which is
the 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 can do. He failed to be gainfully
employed from February 25, 2011 until November 9, 2011. There were 257 days from
the onset of his illness on February 25, 2011 up to November 9, 2011. Thus, his disability
assessment of partial disability of grade 10 was converted or made permanent after the
lapse of 240 days.
On the other hand, respondents maintain the following:

9
1. CA correctly ruled that the company doctor is the one who is tasked with the
determination of a seafarer's disability or fitness. The report of Dionio's doctor was also
based on a one-time examination as opposed to the company doctor who treated him for
six months.
2. Contrary to petitioner's assertion, a seafarer is not entitled to disability benefits if he did
not comply with the procedure on appointment of a third doctor under the employment
contract. In the POEA Contract, as well as the CBA of the parties, it is the company-
designated doctor who is mandated to determine the degree of disability or fitness to
work of a seafarer.
3. Supposing the CBA is indeed applicable in this case, based on Sec. 20.1.4 thereof, the
seafarer must be certified permanently unfit for further sea service in any capacity by the
company doctor for the medical unfitness clause to apply. Mere inability to work does
not justify total and permanent disability compensation.

ISSUE:
Whether the company–designated doctor’s findings shall prevail due to Dionio’s failure
to comply with the requirement of referral to a third-party physician.

HELD:
Petition is GRANTED.
The company-designated physician will have the first opportunity to examine the seafarer
and, thereafter, issue a certification as to the seafarer's medical status. On the basis of the said
certification, seafarers would be initially informed if they are entitled to disability benefits. The
seafarers, however, are not precluded from challenging the diagnosis of the company-designated
physicians should they disagree with such findings. They have the option to seek another opinion
from a physician of their choice and, in case the latter's findings differ from that of the company-
designated physician, the conflicting findings shall be submitted to a third--party doctor, as
mutually agreed upon by the parties.
Following the POEA – Standard Employment Contract, when there is conflict between
the findings of the company--designated doctor and the doctor chosen by the seafarer, the latter
is bound to initiate the process of referring the findings to a third-party physician by informing
his employer. The referral to a third doctor has been held by the Court to be a mandatory
procedure as a consequence of the provision in the POEA-SEC that the company-designated
doctor's assessment should prevail in case of non-observance of the third-doctor referral
provision in the contract.
Failure to comply with the requirement of referral to a third-party physician is tantamount
to violation of the terms under the POEA-SEC, and without a binding third-party opinion, the
findings of the company--designated physician shall prevail over the assessment made by the
seafarer's doctor. However, failure to refer the conflicting findings to a third doctor does not ipso

10
facto render the conclusions of the company-designated physician conclusive and binding on the
courts.
While failure to refer the conflicting findings between the company-designated physician
and the seafarer's physician of choice gives the former's medical opinion more weight and
probative value over the latter, still, it does not mean that the courts are bound by such doctor's
findings, as the court may set aside the same if it is shown that the findings of the company-
designated doctor have no scientific basis or are not supported by medical records of the seafarer.
The rule that the company-designated doctor's findings shall prevail in case of non-
referral of the case to a third doctor is not a hard- and-fast rule as labor tribunals and the courts
are not bound by the medical findings of the company-doctor. Instead, the inherent merits of the
respective medical findings shall be considered.
Dionio was treated by the company-designated doctor from March 9, 2011 to September
5, 2011. While the company-designated physician suggested a disability grading of "Grade 10,"
the company-doctor also opined "that prognosis for return to sea duties is guarded to risk of
another cerebrovascular event." Again, while much weight is given to the company-doctor's
assessment, in view of the seafarer's failure to initiate the referral to a third doctor, the Court is
not bound to accept, in its entirety, the company doctor's findings, where the circumstances
surrounding the fit-to-work assessment show otherwise.

11
15. Guerrero v. Phil Transmarine Carrier, October 3, 2018
(CAMY)

FACTS:
Guerrero alleged that on August 15, 2011, he was employed by PTCI as a Casino Dealer
on board the vessel GTS Constellation for a period of 6 months with a basic monthly salary of
US$255.00. His pre-employment medical examination declared he was "fit to work as a
seaman."
Accordingly, sometime in January 2012 during a gastro-intestinal outbreak in the ship, he
and other crew members were tasked and ordered to bring elderly guests out of the ship through
wheelchairs; since the platform was not levelled with the ship's door exit, and the bridge
connecting the platform and the door exit was too steep, they decided that the best way to move
and transfer the elderly passengers was by pulling the wheelchairs; while he was pulling a
wheelchair with a passenger, a sudden motion occurred which caused him to lose his balance but
managed to prevent the wheelchair, the passenger and himself from falling; in order to keep the
passenger safe, he had to push the wheelchair really hard to gain control over it; after said
incident, he started experiencing back pains which he just ignored. When the backpain became
unbearable, he consulted the doctor of the vessel who prescribed him pain reliever medication
and sleeping pills.
In Carribean, he underwent an MRI the attending physician made the following
Impression: Findings revealed changes of Lumbar Spondylosis involving L2-3, L3-4, L4-5 disc
causing of compression of left L5 and bilateral L4 roots as described. No cords conus
abnormality seen.
He was recommended for medical repatriation. He underwent a series of physical therapy
sessions at PGH under the supervision of the company-designated physician/surgeon, Dr. Adrian
Catbagan. On October 19, 2012, a major surgery called Transforaminal Lumbar Interbody
Fusion L3-L4 & L4-L5 was performed. Since the pain still persisted notwithstanding the medical
procedures performed on him, he consulted, on January 17, 2013, Dr. Cesar H. Garcia who
issued on even date a medical certificate declaring him "UNFIT for further sea service in
whatever capacity as a SEAFARER."
He contends: respondents failed to compensate him of permanent and total disability
benefits. He maintained that he sustained a spinal injury due to an accident arising out, and in the
course of, his employment
Respondents maintained: Guerrero is not entitled to disability benefits because he
sustained the alleged injury during an incident at the crew gym; that going to the gym and the use
of gym facilities are not part of Guerrero's' job and could not have any relation to his duties as a
Casino Dealer; that Guerrero's injury is not compensable since it has not arisen from a work-
related incident; that they had faithfully complied with their contractual obligation to him and
had even provided him with extensive medical attention for humanitarian consideration.

12
LA: PTCI and CC are solidarity liable for disability compensation to Guerrero. Although
Guerrero's injury had resulted from a gym incident, the same would not release respondents
PTCI and CC from their liability for disability benefits; that Guerrero has been incapacitated to
work for more than 120 days from the date he was repatriated and seen by the company-
designated physician.
NLRC: Guerrero is not entitled to disability benefits and payment of his other monetary
claims because his injury is not work-related or not an injury sustained while working on-board
the vessel no other evidence was adduced to support and corroborate his "wheelchair theory"
CA: affirmed NLRC

ISSUE: WON he is entitled to disability benefits and award of damages

HELD:
For disability to be compensable, two elements must concur:
(1) Illness must be work-related; and
(2) the work-related injury or illness must have existed during the term of the seafarer's
employment contract.
Work-related injury pertains to injury(ies) resulting in disability or death arising out of,
and in the course of, employment.
Jurisprudence elucidates that the words "arising out of" refer to the origin or cause of
the accident, and are descriptive of its character, while the words "in the course of" refer to the
time, place, and circumstances under which the accident takes place. As a matter of general
proposition, an injury or accident is said to arise "in the course of employment" when it takes
place within the period of the employment, at a place where the employee reasonably may be,
and while he is fulfilling his duties or is engaged in doing something incidental thereto
Work-relatedness of an injury or illness means that the seafarer's injury or illness has a
possible connection to one's work, and thus, allows the seafarer to claim disability benefits
therefor. The oft-repeated rule is that whoever claims entitlement to the benefits provided by
law should establish his or her right thereto by substantial evidence.
The onus probandi fell on Guerrero to establish his claim for disability benefits by the
requisite quantum of evidence that would serve as basis for the grant of the relief. Unfortunately,
Guerrero utterly failed to prove a reasonable connection between his work as a Casino Dealer
and his alleged lumbar disc injury. Apart from his bare allegation that he sustained an injury
sometime in January 2012 while assisting an elderly passenger on a wheelchair to disembark
from the vessel in compliance to an order from the management, no other competent and
independent evidence was proffered to substantiate and to corroborate his foregoing claim.
Awards of compensation cannot rest entirely on bare assertions and presumptions.

Respondents were able to expose the falsity of Guerrero's story when they submitted in
evidence the Crew Injury Statement dated March 22, 2012, which contained Guerrero's

13
admission to the effect that the subject injury resulted from his gym workout. Guerrero's
strenuous physical activity consisting of frequent bending and improper lifting of heavy objects
during his routine workout at the crew gym on January 22, 2012 produced extreme torsional
stress on his back which caused his subject injury. There is nothing in the Job Description
Manual which states that part of Guerrero's duty as a Casino Dealer is to go to the crew gym and
use its facility for his physical workout.
Guerrero's contentions that his disability is permanent and total because Dr. Catbagan,
the company-designated physician, failed to issue a medical certificate as to his fitness for work
resumption or disability within the 240-day maximum period, and because his chosen physician,
Dr. Garcia, issued a medical certificate finding him unfit for further service as a seafarer, would
not advance his cause against the respondents. The same were not raised before the labor tribunal
and, thus, cannot be considered on appeal
The declaration of Dr. Garcia in the medical certificate that Guerrero is "UNFIT for
further sea service in whatever capacity as a SEAFARER" leaves much to be desired. Said
medical certification was not supported by any relevant and necessary diagnostic tests and/or
procedures. No medical records or other sufficient proof was adduced to justify the above-
mentioned pronouncement/diagnosis. It bears stressing that Dr. Garcia issued the medical
certificate on the very same day that he was consulted by Guerrero. Dr. Garcia's assessment
should not be taken at face value. At best, Dr. Garcia's medical certificate was merely concerned
on the examination of Guerrero for purposes of diagnosis and treatment and not for the
determination of whether the latter incurred a disability.
Also, Guerrero proffered varying narrations/versions as to how he allegedly incurred his
injury.
Guerrero failed to demonstrate that the dismissal of his complaint by the NLRC was
tainted with grave abuse of discretion or that the NLRC had no jurisdiction to order the same.
Let it be underscored that the constitutional policy to afford full protection to labor is
never meant to be a sword to oppress employers. While the Court is committed to the cause of
the labor, the same would not deter us from sustaining the employer when it is correct and
proper. It must be emphasized that justice is, in every case, for the deserving and must be
dispensed with after a thorough scrutiny and circumspect evaluation of the established facts, the
applicable law/s and the prevailing jurisprudence.

14
16. Phil. Hammonia Ship Agency v. Israel, October 3, 2018

FACTS:
PHSA, the local manning agent, on behalf of petitioner DML, the foreign principal, hired
respondent Ferdinand Z. Israel as a Bosun. A pre-employment medical examination was
conducted to respondent, and declared such him "FIT FOR SEA SERVICE". The next day he
signed his Contract of Employment. While performing his duties on board vessel NASR,
respondent accidentally fell from a height of 2 to 2.5 meters while he was conducting an
inspection of the crew's maintenance work. Respondent's right arm and shoulder hit the deck
first, absorbing the impact of his fall. Because of the persistent pain on his right shoulder,
respondent was brought to the Orthopedic and was diagnosed with "supraspinatus tendonitis
right shoulder," and was recommended his repatriation. Respondent was repatriated back to the
Philippines. He then underwent therapy. After some sessions he was declared “fit to resume sea
duties” by the company physician.
Petitioner PHSA refused to re-employ respondent because of his condition, or to pay him
disability benefits. Respondent alleged that he continues to suffer pain on his right shoulder
everytime he raises his right arm, making it difficult for him to perform simple tasks such as
putting on or taking off his shirt. That despite the physical therapy sessions and improvement in
his right shoulder, the pain on his right shoulder was not cured. Respondent asserted that his
disability is total and permanent as no manning agency or vessel owner would consider him for
overseas employment because of the condition of his right shoulder, which is the same reason
why petitioners refused to re-engage respondent's services. Respondent claimed that he should be
compensated with disability benefits in the amount of US$60,000.00 pursuant to the POEA
standard employment contract.
Petitioners stated that their refusal to pay respondent's claims for disability benefit was
pursuant to the company-designated physician's certification that respondent is already fit to
work. In the absence of malice or bad faith on their part, the award of attorney's fees in favor of
respondent is improper.
LA: (In favor of respondent) Respondent did not fully recover from his shoulder injury,
inhibiting him to work as a seaman permanently. Additionally, respondent's disability has
become permanent and total since he was not able to perform his usual work for more than 120
days from repatriation, entitling respondent to full disability benefits. The Labor Arbiter also
found petitioners liable to pay respondent attorney's fees.
NLRC: Affirmed the Labor Arbiter's Decision
CA: Petitioners sought remedy from the Court of Appeals through a Petition for
Certiorari With Urgent Prayer for the Issuance of a Writ of Preliminary Injunction and/or
Temporary Restraining Order which was later on Denied.

15
ISSUE:
WON Respondent is still entitled to disability benefits after he was declared fit to work
by the company designated physician which he himself acknowledged by executing a certificate
of fitness for work. (YES)

HELD:
The Supreme Court affirmed the decision of the Court of Appeals. The award of
attorney's fees in favor of respondent is in order. Where an employee is forced to litigate and
incur expenses to protect his right and interest, he is entitled to an award of attorney's fees
equivalent to 10% of the award.
From the forgoing facts, despite the treatment that he received and improvement in his
condition, respondent continued to suffer shoulder pain. By the time that company physician
certified that respondent is already fit to work on January 31, 2006, 142 days had passed since
respondent's repatriation on September 11, 2005. During that period, respondent was
incapacitated to perform his work as a bosun, which consequently deprived him of his livelihood.
Pursuant to Crystal Shipping, respondent is already deemed to be suffering from permanent total
disability.
Crystal Shipping:
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.
Jurisprudence provides that the current rule is: (1) that mere inability to work for a period
of 120 days does not entitle a seafarer to permanent and total disability benefits; (2) that the
determination of the fitness of a seafarer for sea duty is within the province of the company-
designated physician, subject to the periods prescribed by law; (3) that the company-designated
physician has an initial 120 days to determine the fitness or disability of the seafarer; and (4) that
the period of treatment may only be extended to 240 days if a sufficient justification exists such
as when further medical treatment is required or when the seafarer is uncooperative.
For as long as the 120-day period under the Labor Code and the POEA-SEC and the 240-
day period under the IRR co-exist, the Court must bend over backwards to harmoniously
interpret and give life to both of the stated periods.
The company-designated physician still failed to make a determination of respondent's
disability within the period prescribed by law, i.e., 120 days. They did not give a medical
diagnosis within the 120-day period that could justify the extension of respondent's treatment to
240 days. The company physician did not offer any plausible reason for their failure to comply
with the 120-day rule, hence, respondent's disability became permanent and total.

16
17. CF Sharp v. Santos, August 1, 2018

FACTS:
Petitioner CF Sharp, acting as the agent of petitioner Norwegian Cruise Line, Ltd., hired
respondent Santos an environmental operator on board the vessel "M/S Norwegian Gem" for a
period of nine (9) months. He was deployed on September 9, 2011, however, only after three
months (December 2011), he experienced dizziness, over fatigue, frequent urination and blurring
of the eyesight thus he was brought to the ship's clinic and was found to have elevated blood
sugar and blood pressure. When he was referred to a hospital, he was found to have a history of
diabetes and has been smoking a pack of cigarettes daily for ten (10) years.
Then, respondent was repatriated to the Philippines and he was immediately referred to
CF Sharp's company designated physicians. They confirmed that he had Diabetes Mellitus II and
hypertension. After some examinations, and after 118 days from repatriation, the company-
designated physicians issued a certification stating that respondent's condition was not work-
related and that his final disability grading assessment for hypertension and diabetes was Grade
12. Unconvinced, respondent consulted another doctor in which Dr. Donato-Tan opined that
respondent's condition was work-related due to the pressure in the cruise ship, which elevated his
blood pressure, and that the food therein was not balanced, which elevated his blood sugar. She
concluded that respondent was permanently disabled to discharge his duties as a seafarer. Hence,
respondent filed a complaint for disability and sickness benefits with damages before the LA.

ISSUE: WON the respondent is entitled to permanent and total disability benefits [NO]

HELD:
The law that defines permanent and total disability of laborers
ART. 192. Permanent Total Disability. —
(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;

In Crystal Shipping, Inc. v. Natividad the Court ruled that " [p]ermanent 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." But in Vergara v. Hammonia Maritime Services, Inc.
(Vergara), the Court declared that the doctrine in Crystal Shipping is not absolute. In Marlow
Navigation Philippines, Inc. v. Osias the Court reaffirmed: (1) that mere inability to work for a
period of 120 days does not entitle a seafarer to permanent and total disability benefits; (2) that
the determination of the fitness of a seafarer for sea duty is within the province of the company-
designated physician, subject to the periods prescribed by law; (3) that the company-designated
physician has an initial 120 days to determine the fitness or disability of the seafarer; and (4) that

17
the period of treatment may only be extended to 240 days if a sufficient justification exists such
as when further medical treatment is required or when the seafarer is Uncooperative
Verily, the company-designated physicians suitably gave their medical assessment of
respondent's disability before the lapse of the 120-day period. It was even unnecessary to extend
the period of medical assessment to 240 days. After rigorous medical diagnosis and treatments,
the company-designated physicians found that respondent only had a partial disability and gave a
Grade 12 disability rating.
As the medical assessment of the company-designated physicians was meticulously and
timely provided, it must be given weight and credibility by the Court.
Likewise, the medical assessment of the company-designated physician was not validly
challenged. Glaringly, respondent only presented a lone medical certificate from Dr. Donato-
Tan, which was in contrast with the extensive and numerous medical assessment of the
company-designated physicians. Consequently, the credibility and reliability of Dr. Donato-Tan's
medical certificate is doubtful.
Lastly, Hypertension and diabetes does not ipso facto result into a permanent and total
disability. Essential hypertension is among the occupational diseases enumerated in Sec. 32-A of
the POEA-SEC. To enable compensation, the mere occurrence of hypertension, even as it is
work-related and concurs with the four (4) basic requisites of the first paragraph of Sec. 32-A,
does not suffice. The POEA-SEC requires an element of gravity. It speaks of essential
hypertension only as an overture to the impairment of function of body organs like kidneys,
heart, eyes and brain. This impairment must then be of such severity as to be resulting in
permanent disability. Sec. 32-A, paragraph 2, thus, requires three successive occurrences: �first,
the contracting of essential hypertension; second, organ impairment arising from essential
hypertension; and third, permanent disability arising from that impairment. In keeping with the
requisite gravity occasioning essential hypertension, the mere averment of essential hypertension
and its incidents do not suffice. On the other hand, diabetes is not among Sec. 32-A's listed
occupational
diseases.
In this case, the company-designated physicians found that respondent had Diabetes
Mellitus II and hypertension. However, they opined that respondent's hypertension was not
essential or primary, hence, it was not severe. Thus, the company designated physicians
concluded that respondent's hypertension was only a partial disability. As stated earlier, the mere
occurrence of hypertension does not suffice because the POEA-SEC requires that it be severe or
grave in order to become a permanent and total disability.

18
18. Magsaysay MOL Marine Inc. v. Atraje, July 23, 2018
DIGESTED BY:
Rosario, Lex

DOCTRINE:
(1) RULES REGARDING THE DUTY OF THE COMPANY-DESIGNATED PHYSICIAN IN
ISSUING A FINAL MEDICAL ASSESSMENT
(2) THE THIRD DOCTOR RULE DOES NOT APPLY WHEN THERE IS NO FINAL AND
DEFINITIVE ASSESSMENT BY THE COMPANY-DESIGNATED PHYSICIANS.
(3) THIRD DOCTOR RULE COVERS ONLY CONFLICTING MEDICAL FINDINGS ON
THE FITNESS TO WORK OR DEGREE OF DISABILITY. IT DOES NOT COVER THE
DETERMINATION OF WHETHER THE DISABILITY IS WORK-RELATED OR NOT.

NOTE:
ShipHealth - the company-designated physicians
Ygeia Hospital - asked for second opinion by ShipHealth
*ShipHealth and Ygeia Hospital’ doctor’s findings:
(1) did not state whether respondent Astraje is unfit or fit for work
(2) their findings were never sent to respondent Astraje; they were only sent upon his filing of
complaint
Dr Magtira - independent physician

FACTS:
1. Atraje entered into a Contract of Employment with Mol Ship, through its local manning
agent, Magsaysay Mol, to work on board the vessel Carnation Ace as Second Cook.
2. At some time, Atraje slipped and fell while holding a casserole containing water and sliced
vegetables. His head hit the stainless disposer and the floor. He had seizure and lost his
consciousness for about five (5) hours. The incident was witnessed by the messman who
was with him at that time.
3. When the vessel reached Singapore, he was brought to Singapore General Hospital, where
he underwent brain magnetic resonance imaging (MRI), electroencephalogram (EEG), and
brain computed tomography (CT) scan. He was diagnosed to have suffered Epileptic
Seizure with post-fit neurological deficit. He was declared unfit to work and
recommended to be repatriated.
4. Atraje arrived, thus, in the Philippines, and was referred to Shiphealth, Inc. (Shiphealth) for
further medical evaluation and treatment. He was noted to have left-sided hemiparesis. He
underwent repeated brain CT scan, electrocardiography (ECG), EEG, and brain MRI,
which showed normal results. From the foregoing, he was advised to undergo physical
therapy for motor function and muscle strength improvements.

19
5. Atraje was examined by an Orthopedic Spine Surgeon wherein the assessment was
Ossified Posterior Longitudinal Ligament. He was advised to continue with the physical
therapy.
6. Shiphealth issued a medical report stating that the Neurologist service's reassessment was
single seizure episode. There was no indication for Atraje to undergo further diagnostic or
treatment intervention neurology-wise. Hence, Atraje was discharged from Neurology
service, although, referral to Orthopedic Spine Surgery was recommended.
7. Atraje completed his 12 sessions of physical therapy. However, persistence of gait
instability and weakness on his left side were still noted.
8. Shiphealth opined that "the current symptoms of weakness could be secondary to the
[Ossified Posterior Longitudinal Ligament]." The company-designated physicians further
stated that the cervical Ossified Posterior Longitudinal Ligament may be pre-existing.
"However, slight trauma to the neck may cause symptoms which may qualify it as work-
aggravated."
9. Atraje continued to suffer from shoulder and neck pain, and had difficulty in using his
upper extremities. He complained of not restored to his pre-injury health status. He
consulted an independent specialist, Dr. Magtira, who issued a Medical Report, which
stated that Atraje was "permanently unfit in any capacity to resume his sea duties as a
seaman."
10. Likewise, 105 days from repatriation, Shiphealth issued an Interim Disability Grading
of Grade 10: "Head, moderate paralysis of two (2) extremities producing moderate
difficulty in movements with self-care activities."
11. Atraje was referred to by the ShipHealth to Ygeia Medical Center for second opinion. In a
letter, Dr. Quetulio, the Medical Director of Ygeia Medical Center, stated that Atraje's
illnesses, namely, "Herniated Nucleus Pulposus are not work-related."
12. Atraje sought payment of disability benefits from Magsaysay Mol and Mol Ship, invoking
Article 28 of the Collective Bargaining Agreement between All Japan Seamen's
Union/Associated Marine Officers' and Seamen's Union of the Philippines, and Mol Ship,
represented by Magsaysay Mol. This Agreement is otherwise known as the IBF
JSU/AMOSUP-IMMAJ CBA.
13. However, Atraje's demands proved futile.
14. Thus, he filed a Complaint against Magsaysay Mol and Mol Ship for payment of, among
others, total and permanent disability benefits.
15. The parties agreed to terminate the mediation and to convene a Voluntary Arbitration
Panel.
16. Not reaching an amicable settlement, the parties were directed to submit their respective
pleadings.
17. The Panel of Voluntary Arbitrators of the National Conciliation and Mediation Board
(NCMB) awarded disability benefits of US$95,949.00 plus 10% of this amount as
attorney's fees in favor of Atraje.

20
18. Magsaysay Mol and Mol Ship's MFR (Motion for Reconsideration) was denied in the
Panel of Voluntary Arbiters of the NCMB.
19. Atraje filed a Motion for Execution, which was granted by the Panel of Voluntary
Arbitrators of NCMB.
20. Magsaysay Mol and Mol Ship paid Atraje the amount of US$95,949.00 plus 10% of this
amount as attorney's fees, without prejudice to the outcome of their appeal before the Court
of Appeals.
21. The Court of Appeals affirmed the NCMB’s decision and denied petitioner Magsaysay
Mol and Mol Ship's subsequent motion for reconsideration.
22. Hence, this petition.
23. Petitioners maintain:
a. that respondent is not entitled to permanent total disability benefits because his
illnesses are not work-related, according to the letter of Dr. Quetulio.
b. Petitioners argue that referral to a third doctor in case of conflicting
findings of the company-designated doctor and the seafarer's personal
doctor is mandatory. Since respondent failed to comply with this requirement,
the assessment of the company-designated doctor should prevail.
24. Respondent counters:
a. that his medical conditions are compensable under the governing Collective
Bargaining Agreement and that the Court of Appeals did not err in granting
him permanent and total disability benefits. The statements of his co-workers
show clearly that respondent suffered an accidental fall while on duty.
b. Respondent counters that non-referral to a third doctor is not a drawback to his
complaint. In the first place, the medical assessment and opinion of the
company-designated doctors were not disclosed to him. He could not have
complied with the third doctor rule since he was not given any assessment by
the company-designated physicians even after his treatment had been
supposedly terminated.

ISSUE:
Whether or not the Court of Appeals erred in affirming the award of permanent and
total disability benefits in favor of respondent Michael Paderes Atraje [NO. CA DID NOT
ERR IN AFFIRMING NCMB’S DECISION OF AWARDING PERMANENT AND TOTAL
DISABILITY BENEFITS IN FAVOR OF RESPONDENT]

HELD:
SC DENIED THE PETITION

I. RESPONDENT ATRAJE’S ILLNESSES ARE WORK-RELATED


Petitioners insist that respondent's illnesses are not work-related.

21
SC held that as found by NCMB and affirmed by the CA that there was substantial
evidence that showing that respondent indeed suffered a fall while on board the ship, which
caused injury to his neck area and his wrist, as testified by the respondent Atraje’s witnesses
that he indeed fell while performing his duties.
SC held Petitioners should have presented the vessel's logbook instead of a mere
unauthenticated Certification of a certain Capt. Pisarenko, who was not even shown to be the
ship captain during respondent's employment. Moreover, even if no record of the accident is
reflected in the logbook, this does not constitute conclusive proof that it did not happen,
especially in light of the positive declarations of the respondent’s witnesses --- namely, the
chief cook and a messman.
To be compensable, reasonable proof of work-connection, not direct causal
relation, is sufficient. "Thus, probability, not the ultimate degree of certainty, is the test of
proof in compensation proceedings." This Court agreed with the NCMB and the CA that
respondent's illnesses are work-related.

II. THE CA DID NOT ERR IN AFFIRMING THE NCMB’S AWARD OF


PERMANENT TOTAL DISABILITY BENEFITS
Neither did the Court of Appeals err in affirming the Panel of Voluntary Arbitrators of
NCMB award of permanent total disability benefits.
The facts of this case show that respondent was never issued any medical assessment or
progress report by the company-designated physicians, from his initial check up until his last
consultation, spanning a total of 204 days. Neither the interim disability rating Grade 10 of
Shiphealth nor Dr. Quetulio's letter was given to respondent. In fact, respondent came to know
about the reports only after his Complaint had been filed with the NCMB. By legal
contemplation, Atraje's disabilities are conclusively presumed to be permanent and total.
Article 192 (c) (1) of the Labor Code provides that temporary total disability lasting
continuously for more than 120 days, except as otherwise provided in the IRR or the
Amended Rules on Employee Compensation of the Labor Code, shall be deemed total and
permanent. Rule X, Section 2 (a) of the Amended Rules on Employee Compensation in turn
provides that:
Section 2. Period of entitlement. — (a) The income benefit shall be paid
beginning on the first day of such disability. If caused by an injury or sickness
it shall not be paid longer than 120 consecutive days except where such
injury or sickness still requires medical attendance beyond 120 days but
not to exceed 240 days from onset of disability in which case benefit for
temporary total disability shall be paid. However, the System may declare the
total and permanent status at any time after 120 days of continuous temporary
total disability as may be warranted by the degree of actual loss or impairment
of physical or mental functions as determined by the System.

22
In Talaroc v. Arpaphil Shipping Corp., this Court summarized the rules regarding the
duty of the company-designated physician in issuing a final medical assessment, as
follows:
1. The company-designated physician must issue a final medical assessment on the
seafarer's disability grading within a period of 120 days from the time the seafarer
reported to him;
2. If the company-designated physician fails to give his assessment within the period of
120 days, without any justifiable reason, then the seafarer's disability becomes
permanent and total;
3. If the company-designated physician fails to give his assessment within the period of
120 days with a sufficient justification (e.g., seafarer required further medical
treatment or seafarer was uncooperative), then the period of diagnosis and treatment
shall be extended to 240 days. The employer has the burden to prove that the
company-designated physician has sufficient justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the
extended period of 240 days, then the seafarer's disability becomes permanent and
total, regardless of any justification.

While the records show that reports were regularly issued to update respondent's medical
condition, the particular treatment administered, and the medicines prescribed to him, they were
correspondences between the company-designated physicians and petitioners only. There was no
indication that respondent was furnished these reports.
Significantly, the interim disability rating of Grade 10 issued 105 days from respondent's
repatriation, was never given to respondent. Also, as an interim disability grade, it does not fully
assess respondent's condition and cannot provide sufficient basis for the award of disability
benefits in his favor. Instead, respondent was referred by petitioners to Ygeia Medical Center for
a second medical opinion.
Ygiea Medical Center’sDr. Quetulio's declared that the illnesses of respondent “are not
work-related." This report lacked a final assessment of respondent's medical condition, of his
disability, or of his fitness to work. Also, similar to the Grade 10 interim diability rating,
respondent also did not have a copy of this report.
Through all his check-ups and tests, respondent did not receive any medical
assessment of his fitness to resume work from the company-designated physicians.
Respondent's shoulder and neck pain persisted such that he was forced to consult an
independent physician, Dr. Magtira. After evaluating respondent's previous MRI and physical
examination, and after giving a brief description of respondent's disease, Dr. Magtira issued his
Medical Report stating that respondent "should refrain from activities producing torsional stress
on the back and those that require repetitive bending and lifting" and that his work activities
must be restricted. He further stated that respondent does not have the physical capacity to return
to his previous work and is "permanently unfit in any capacity to resume his sea duties."

23
Evidently, his illnesses disabled him to continue his job on board the vessel. Despite
medication and physical therapy, he was not restored to his pre-injury health status. Moreover,
there was no declaration from the company-designated doctors about his fitness to return to
work, while his own physician advised him to refrain from undergoing strenuous activities.
This Court has held that:
[P]ermanent total disability does not mean a state of absolute
helplessness but the inability to do substantially all material acts necessary to
the prosecution of a gainful occupation without serious discomfort or pain and
without material injury or danger to life. In disability compensation, it is not
the injury per se which is compensated but the incapacity to work.

Respondent's inability to perform his customary sea duties, coupled with the
company-designated physicians' abdication of their primary duty to declare his fitness or
unfitness to work within the prescribed period, transforms his disability to permanent and
total by operation of law.

III. THE THIRD DOCTOR-REFERRAL PROVISION DOES NOT APPLY


BECAUSE THERE IS NO DEFINITE DISABILITY ASSESSMENT FROM THE
COMPANY-DESIGNATED PHYSICIANS.
Finally, petitioners' contention on non-compliance with the third doctor rule is untenable.
Under Section 20 (A) (3) of the 2010 POEA-SEC, "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." The
assessment refers to the declaration of fitness to work or the degree of disability, as can be
gleaned from the first paragraph of Section 20 (A) (3). It presupposes that the company-
designated physician came up with a valid, final, and definite assessment on the seafarer's
fitness or unfitness to work before the expiration of the 120- or 240-day period.
In this case, the third doctor-referral provision does not apply because there is no definite
disability assessment from the company-designated physicians.
In Kestrel Shipping Co., Inc. v. Munar:
In addition, that it was by operation of law that brought forth the
conclusive presumption that Munar is totally and permanently disabled, there
is no legal compulsion for him to observe the procedure prescribed under
Section 20-B (3) of the POEA-SEC. A seafarer's compliance with such
procedure presupposes that the company-designated physician came up
with an assessment as to his fitness or unfitness to work before the
expiration of the 120-day or 240-day periods. Alternatively put, absent a
certification from the company-designated physician, the seafarer had
nothing to contest and the law steps in to conclusively characterize his
disability as total and permanent.

24
Hence, at the case at bar, given the company-designated physicians' inaction or failure to
disclose respondent's medical progress, the extent of his illnesses, and their effect on his fitness
or disability, respondent was justified in seeking the medical expertise of the physician of his
choice.

IV. THIRD DOCTOR RULE COVERS ONLY CONFLICTING MEDICAL


FINDINGS ON THE FITNESS TO WORK OR DEGREE OF DISABILITY. IT DOES
NOT COVER THE DETERMINATION OF WHETHER THE DISABILITY IS
WORK-RELATED OR NOT.
Lastly, petitioners were adamant in their position that respondent's disabling medical
conditions are not work-related. The third doctor rule covers only conflicting medical findings on
the fitness to work or degree of disability. It does not cover the determination of whether the
disability is work-related or not.

25
19. Dionio v. ND Shipping Agency and Allied Services, August 15, 2018
(Camy)

FACTS:
Gil T. Dionio was hired by ND Shipping Agency and Allied Services, Inc. for its foreign
principal, Caribbean Tow and Barge (Panama), Ltd. to serve as a Second Engineer on board the
vessel MT Caribbean Tug. Before assuming his employment, Gil had a clean bill of health
evidenced by his Medical and Laboratory Examination Result. His contract was extended until
February 13, 2007.
On January 30, 2007, while in the course of his extended employment, Gil suffered from
a Urinary Tract Infection (UTI) and prostate enlargement. While vessel was in Turk and Caicos
Islands, he was examined by Dr. Victoria Smith who declared him unfit for work and
recommended his repatriation. Dr. Smith also advised that Gil be assessed by another physician
specializing on surgery and prostate examination. When he arrived in the PH, He immediately
went to ND Shipping's office where he was issued a Referral Slip for medical examination at
the Micah Medical Clinic and Diagnostic Laboratory. But the slip stated that the expenses shall
be paid for by Gil.
On the same day, a representative of the ND Shipping sent an email to K. Arnesen
Shipping, the owner of the vessel, requesting for the medical check-up of Gil at the ship owner's
expense, but was denied and stated that Gil must arrange for his own medical check-up. Thus,
Gil was never examined by the company-designated physician.
On April 2, 2007, Gil signed a Release, Waiver and Quitclaim in favor of respondents
and he received the total amount of P31,200.00. It stated that he was discharging ND Shipping,
its officers and employees from any and all actions in connection with his employment with
respondents. According to petitioner (his WIFE), her husband was in a hapless condition when
he signed the waiver
(**basta apat a doctors nagcheck sa kanya, puro same sinabi na Prostatic Cancer) On
June 20, 2007, Dr. Glenn Maclang diagnosed Gil with "Prostatic Cancer Stage IV with wide
spread metastasis. Due to his worsening condition, on March 12, 2008 Gil was again hospitalized
at the Seamen's Hospital-Iloilo. She recommended the treatment of blood transfusion.
Nonetheless, Dr. Gargalicana could not determine the period of his healing.He was again
admitted at the West Visayas State University Medical Center. In the Medical Certificate, Dr.
Elma Marañon diagnosed Gil with "Prostatic Cancer Stage IV with Bone Metastasis and Cord
Compression Anemia Secondary" which caused the paralysis of his lower Extremities.
On May 4, 2008, he died. In the Death Certifcate it was stated that Gil died due to
cardiopulmonary arrest secondary to multiple organ failure. The underlying cause of his death
was due to prostatic malignancy with pulmonary metastasis while other significant conditions
contributing to his death were pneumonia in the immunocompromised host and UTI
Petitioner, the legal wife of Gil, filed a complaint before the LA for payment of death
benefits, sickness allowance, burial expenses, moral and exemplary damages, and attorney's fees

26
Respondent: Gil's death is not compensable because he did not die during the term of his
contract and his illness is not one of those listed as an occupational disease under Section 32 of
the 2000 POEA-SEC; that Gil failed to submit himself for a postemployment medical
examination within three (3) days after repatriation even though he was issued a referral slip to
the company-designated physician
LA:The illness of Gil was work-related because he was medically repatriated due to his
prostate ailment and his cause of death was prostatic malignancy with pulmonary metastasis. It
ruled that it is not required that the seafarer's ailment be acquired during his employment for it is
sufficient that his employment contributed, even in a small measure, to the development of the
disease.
NLRC: Reversed and set aside the LA ruling. It held that Gil failed to submit himself to
the medical examination of the company-designated physician within three (3) days from
repatriation, hence, he violated the POEA-SEC that Gil was given a referral slip but he did not
go to the company-designated physician; that petitioner failed to present sufficient evidence to
prove that Gil's illness was work-related.
CA: dismissed the petition for not having been filed within the 60-day reglementary
period, but on petition for review on certiorari, SC remanded the case to CA for the latter to
decide on the merits.
It ruled that petitioner failed to prove with substantial evidence that the illness of Gil was
work-related; that he cannot simply rely on the disputable presumption that the illness of a
seafarer is work-related; that Gil failed to comply with the mandatory post-employment medical
examination within 3 days upon repatriation; that he did not sufficiently establish that ND
Shipping refused to pay for Gil's medical examination.

ISSUE: WON petitioner is entitled to the claims filed [YES]

HELD:
Procedural: SC as an exception, tackled on the factual question of the case. Two of the
exceptions exists — the findings of absence of facts are contradicted by the presence of evidence
on record and the findings of the CA and the NLRC are contrary to those of the LA. They had
different appreciations of the evidence in determining the propriety of petitioner's claim for death
benefits.

Post-employment medical examination of seafarers:

Sec. 20 (B) (3) of the 2000 Amended POEA-SEC (Sec. 20 (B) (3), lays down the
procedure in order for a seafarer to claim disability benefits:
A seafarer claiming disability benefits is required to submit himself to a post-employment
medical examination by a company-designated physician within (3) working days from
repatriation. Failure to comply with such requirement results in the forfeiture of the seafarer's

27
claim for disability benefits. There are, however, exceptions to the rule: (1) when the seafarer is
incapacitated to report to the employer upon his repatriation; and (2) when the employer
inadvertently or deliberately refused to submit the seafarer to a post-employment medical
examination by a company-designated physician. Moreover, it is the burden of the employer to
prove that the seafarer was referred to a company-designated doctor. (**not the exact provision,
summary lang ng rules. Yung 2nd exception ay based sa ruling ng De Andres v. Diamond H
Marine Services & Shipping Agency, Inc., ung 1st exception nakalagay sa mismong provision)
RATIONALE: reporting the illness or injury by the seafarer within 3 working days from
repatriation fairly makes it easier for a physician to determine the cause of the illness or injury.
To ignore the rule might set a precedent with negative repercussions, like opening floodgates to a
limitless number of seafarers claiming disability benefits, or causing unfairness to the employer
who would have difficulty determining the cause of a claimant's illness because of the passage of
time. The employer would then have no protection against unrelated disability claims.
It must be underscored that the company-designated physician has either 120 or 240 days,
depending on the circumstances, within which to complete the medical assessment of the
seafarer; otherwise, the disability claim shall be granted.

Respondents failed to properly refer Gil to the company-designated physician


Gil complied with the reportorial requirement. Accordingly, pursuant to De Andres, Gil
has performed his duty under Sec. 20 (B) (3) to immediately report to the employer within three
(3) working days from repatriation. Consequently, at that moment, it was the duty of respondents
to refer Gil to a company-designated physician for a post-employment medical examination, but
they refused to refer Gil to the company-designated physician at their expense.
Evidently, when the ship owner replied (as evidenced by email) to ND Shipping that Gil
must arrange for his own medical check-up, it did not anymore heed the request of Gil to have a
postemployment medical examination at the expense of the ship owner. On the other hand, the
referral slip states that he will pay for the expenses of his post-employment medical examination
at the company-designated physician.
Glaringly, respondents did not even state when Gil should visit the company-designated
physician, raising doubts on their sincerity to medically assess and treat him.
Respondents left Gil to fend for himself. As he could not secure the medical assistance from
respondents, Gil had no choice but to seek medical treatment elsewhere at his own expense.
Respondents: Gil should first shoulder his medical expenses with the company-
designated physician. If proven that his illness was work-related, only at that moment will
respondents shoulder his medical treatment. This violates:

Sec. 20 (B) (2) of the POEA- SEC:


2. If the injury or illness requires medical and/or dental treatment in a foreign port, the
employer shall be liable for the full cost of such medical, serious dental, surgical and hospital
treatment as well as board and lodging until the seafarer is declared fit to work or to be

28
repatriated. However, if after repatriation, the seafarer still requires medical attention arising
from said injury or illness, he shall be so provided at cost to the employer until such time he is
declared fit or the degree of his disability has been established by the company-designated
physician.
It is the employer that shall shoulder the cost of the seafarer's medical treatment after his
repatriation until such time that he is declared fit to work or the degree of his disability has been
established by the company-designated physician. The POEA-SEC is the law between the
seafarer and his or her employer, thus, its provisions must be respected. A seafarer who had just
been medically repatriated is already burdened with the obligation to immediately report to his
employer in spite of his illness or injury. His failure to report forfeits his right to claim disability
benefits. Thus, the POEA-SEC deemed it proper not to impose any financial burden to the
seafarer until such time that he is fit to work or until his degree of disability is established by the
company-designated physician.
The reporting of the seafarer to the employer from his repatriation initiates the procedure
for the determination of the disability or fitness of the seafarer. He shall then be referred by the
employer to the company-designated physician for medical diagnosis and treatment, at the
employer's cost. The company-designated physician has 120 or 240 days, depending on the
circumstances to complete the medical assessment and to determine whether the seafarer is fit to
work or to establish the degree of disability.
The seafarer may avail the separate medical assessment of his physician of choice. If
there is a difference between the medical assessment of the company-designated physician and
the seafarer's physician of choice, the seafarer's medical condition shall be referred to a third
doctor, whose medical assessment shall be deemed final.

Gil was forced to seek medical assistance elsewhere


As respondents refused to answer the medical treatment of Gil upon his repatriation,
contrary to the provisions of the POEA-SEC, Gil was never examined by the company-
designated physician. A fortiori, respondents could not present any medical report prepared by
the company-designated physician on the medical condition of Gil. They could not state whether
Gil was fit to return to work or the specific grading of his disability.
It is the doctor's findings that should prevail as he or she is equipped with the proper
discernment, knowledge, experience and expertise on what constitutes total or partial disability.
The doctor's declaration serves as the basis for the degree of disability that can range anywhere
from Grade 1 to Grade 14. Notably, this is a serious consideration that cannot be determined by
simply counting the number of treatment lapsed days.
Absent the company-designated physician's medical assessment, respondents could only
present unsupported allegations and suppositions regarding Gil's medical condition.
Gil consulted four physicians. All of them issued medical certificate and consistently
found that Gil had prostatic cancer. At one point, Dr. Gargalicana noted in her medical certificate
that she could not determine the period of healing of Gil's disease.

29
Between the non-existent medical assessment of a company-designated physician of
respondents and the medical assessment of Gil's physicians of choice, the latter evidently stands.
Respondents were obliged to refer Gil to a company-designated physician and shoulder
the medical expenses, but they reneged on their responsibility and simply ignore the plight of
their seafarer.

Petitioner properly invokes the disputable presumption that an illness of a seafarer is work-
related
The POEA-SEC defines work-related injury as injury resulting in disability or death
arising out of and in the course of employment and as any sickness resulting to disability or
death as a result of an occupational disease listed under Sec. 32-A of this contract with the
conditions set therein satisfied.
Section 32-A. OCCUPATIONAL DISEASES. —
For an occupational disease and the resulting disability or death to be compensable, all
of the following conditions must be satisfied:
1. The seafarer's work must involve the risks described herein;
2. The disease was contracted as a result of the seafarer's exposure to the described
risks;
3. The disease was contracted within a period of exposure and under such other
factors necessary to contract it; and
4. There was no notorious negligence on the part of the seafarer.
The list of illness/diseases in Sec. 32-A does not exclude other illnesses/diseases not so
listed from being compensable. Disputable presumption is created in favor of compensability.
Illnesses not listed in Sec. 32 are disputably presumed as work-related. This means that even if
the illness is not listed under Sec. 32-A of the POEA-SEC as an occupational disease or illness, it
will still be presumed as work-related, and it becomes incumbent on the employer to overcome
the presumption. The non-inclusion in the list of compensable diseases/illnesses does not
translate to an absolute exclusion from disability benefits. In other words, the disputable
presumption does not signify an automatic grant of compensation and/or benefits claim; the
seafarer must still prove his entitlement to disability benefits by substantial evidence of his
illness' work-relatedness.
It is not required that the employment be the sole factor in the growth, development or
acceleration of the illness to entitle the claimant to the benefits provided therefor. It is enough
that the employment had contributed, even in a small degree, to the development of the disease
and in bringing about his death
Gil was already suffering from UTI and enlargement of the prostate while on board the
vessel. These are symptoms of prostate cancer. Thus, Dr. Smith advised that Gil be treated by
another physician and recommended his repatriation. Further, at the time of his employment, Gil
was already 54 years old. He was already within the age group that is susceptible to prostate
cancer. To add to his dilemma, Gil was exposed to the stress and strains on board the vessel that

30
every seafarer faces. Respondents should have been mindful of the health condition of Gil,
especially when Dr. Smith already found him to be suffering from UTI and an enlarged prostate
during his employment.
Early diagnosis and treatment of prostate cancer has better prognosis or probability of
recovery. However, instead of immediately addressing the illness of Gil upon his repatriation,
respondents simply ignored his request for extensive medical examination at the expense of the
ship owner, contrary to the provisions of the POEA-SEC. Gil was left on his own. Due to the
indifference of respondents to the medical condition of Gil, it was only on June 5, 2007, when
Gil went to his hometown in Iloilo and was admitted at the Iloilo Doctor's Hospital, that he was
able to receive extensive medical treatment at his own expense. From the time of his repatriation,
it took almost four (4) months before the illness of Gil was confirmed; regrettably, it was already
at the later stage of cancer and it was already spreading.
Petitioner proved with substantial evidence that the illness of Gil was work-related. Thus,
she can invoke the disputable presumption that her husband's decease was worked-related. It is
now the burden of respondent to overcome such disputable presumption by presenting their own
evidence.
However, respondents miserably failed to overcome the said disputable presumption of
the work-related illness. They did not present a scintilla of proof to establish the lack of casual
connection of the Gil's disease with his employment as a seafarer. No medical finding of a
company-designated physician was presented because respondents did not observe Gil's plea for
an extensive medical check-up at the ship owner's expense. The said medical findings of the
company-designated physician could have been the proper avenue to determine the seafarer's
illness, whether it was, indeed, work-related or its specific grading of disability.
Petitioner proved with substantial evidence that the illness of Gil was work-related. Thus,
she can invoke the disputable presumption that her husband's decease was worked-related. It is
now the burden of respondent to overcome such disputable presumption by presenting their own
evidence.
However, respondents miserably failed to overcome the said disputable presumption of
the work-related illness. They did not present a scintilla of proof to establish the lack of casual
connection of the Gil's disease with his employment as a seafarer. No medical finding of a
company-designated physician was presented because respondents did not observe Gil's plea for
an extensive medical check-up at the ship owner's expense. The said medical findings of the
company-designated physician could have been the proper avenue to determine the seafarer's
illness, whether it was, indeed, work-related or its specific grading of disability.

The Release, Waiver and Quitclaim signed by Gil deserves scant consideration
To be valid, a deed of release, waiver and/or quitclaim must meet the following
requirements:
(1) that there was no fraud or deceit on the part of any of the parties;
(2) that the consideration for the quitclaim is credible and reasonable; and

31
(3) that the contract is not contrary to law, public order, public policy, morals or good
customs, or prejudicial to a third person with a right recognized by law.
A quitclaim is ineffective in barring recovery of the full measure of a worker's rights, and
the acceptance of benefits therefrom does not amount to estoppel. Moreover, a quitclaim in
which the consideration is scandalously low and inequitable cannot be an obstacle to the pursuit
of a worker's legitimate claim.
Manifestly, the consideration (for the R,W,Q P31,200) is greatly disproportionate to the
illness that Gil suffered. The gravity of his illness deteriorated his health, which eventually lead
to his death on May 4, 2008. In spite of the severity of his illness, respondent only gave Gil
P31,200.00 and he had to shoulder the expense of his own medical treatment. The compensation
is not even equivalent to the basic salary he receives as a seafarer. Further, it was not proven that
the contents of the waiver were explained to him by respondents or their representatives. Gil was
in a worsening and hapless condition when he signed the said waiver he had no other option but
to sign the document in favor of respondents in order to receive a meager compensation for his
medical needs.
Verily, the release, waiver and quitclaim must be struck down because it did not have a
valid consideration, the contents were not explained to Gil, and his deteriorating health forced
him to sign the same.
The court acknowledges the legal battle petitioner endured to uphold the right of her
deceased husband. These proceedings could have been avoided had respondents provided Gil
with the proper medical treatment upon his repatriation, pursuant to the provisions of the POEA-
SEC.

32