Disability procedure when the seafarer disputes the company physician’s findings requires that a third doctor must be consulted. Failure to observe this procedure militates against the disability claim of the seafarer.
Rommel Daraug (Daraug) was employed by respondent KGJS Fleet Management Manila, Inc. (KGJS) for the second time to serve as motorman on board the vessel M/V Fayal Cement.
While Daraug was working in the storage room, several steel plates fell and hit his leg. Specifically, it resulted in the fracture of his right fibula and tibia. He was then medically repatriated, examined and treated by the company-designated physicians, Dr. Fidel C. Chua (Dr. Chua) of Trans-Global Health Systems, Inc., Makati City; and Dr. Tiong Sam Lim (Dr. Lim), an orthopedic surgeon from Chinese General Hospital.
After his treatment, Dr. Lim and Dr. Chua concluded that Daraug’s right leg was fully healed and that he was fit to work. He executed the Certificate of Fitness to Work releasing KGJS of any liability that might arise as a result of his injury.
Much later, he underwent several examinations which confirmed that he was fit to work. Daraug was hired again by KGJS for the third time, for and in behalf of its foreign principal, respondent Kristian Gerhard Jebsen Skipsreder AS (KGJS AS), as a motorman on board M/V Ibis Arrow.
While Daraug was working in the engine room, he accidentally slipped and fell, injuring his right leg again. The doctors of Meyer Servicos Medicus Clinic in Brazil found that he had sustained a severe bruise/hematoma on his right leg and recommended that he disembark from the vessel and continue his treatment in his homeport. He was then medically repatriated on November 14, 2009.
Almost immediately upon his arrival on November 16, 2009, Daraug reported to Dr. Chua who, in turn, referred him again to Dr. Lim. After an x-ray test found no fracture on his leg, Dr. Lim recommended that he take anti-inflammatory drugs and antibiotics for his injury. Concurring in the findings and recommendations of Dr. Lim, Dr. Chua diagnosed Daraug to have suffered from contusion hematoma.
After re-evaluating him on two occasions, Dr. Lim found that Daraug had recovered from his injuries and declared him fit to work. From the time he was repatriated until he was declared fit to work, he was paid his sick wages. Again, he executed another Certificate of Fitness to Work.
About two and a half months later, on March 5, 2010, Daraug filed a complaint against KGJS and KGJS AS, seeking permanent disability benefits under the NSA/NMU-AMOSUP CBA, sick wages, damages, and attorney’s fees. In his Affidavit-Complaint, he claimed that his latest injury which occurred on board the M/V Ibis Arrow, together with his previous accident on board the M/V Fayal Cement, rendered him permanently disabled.
It appears that after the filing of his complaint, Daraug sought the services of Dr. Manuel C. Jacinto, Jr. (Dr. Jacinto) of Sta. Teresita General Hospital in Quezon City. Dr. Jacinto issued a medical certificate attesting that Daraug was suffering from open fracture on his right fibula and that he was no longer fit to work. Dr. Jacinto also noted that he was physically unfit to go back to work.
The LA rendered his decision granting Daraug’s claims.
In finding them meritorious, the LA found the medical assessment of the company-designated physicians unreliable and biased in favor of KGJS, et al.. The LA observed that Daraug was injured twice, once while he was assigned to work in the vessel M/V Fayal Cement and, again, on board the M/V Ibis Arrow. Also, the LA personally observed Daraug to have difficulty in walking, bending and carrying any weight and concluded that the diagnosis of Dr. Jacinto was more credible and superior than the findings of the company-designated physicians.
As to Daraug’s claim for 130 days of sick wages, the LA also found it to be meritorious but limited it to $1,986.38, considering that KGJS, et al. had already paid a portion of it.
The NLRC reversed the LA ruling. The NLRC was of the considered view that the finding of Dr. Lim that Daraug was fit to work should have been given credence, considering the time and effort that he spent in monitoring and treating his condition.
The NLRC noted that he was under the care of Dr. Lim from November 17, 2009 until he was declared fit to work on December 21, 2009. It also found that there was neither any medical evidence to dispute Dr. Lim’s findings nor any proof that he questioned the findings of Dr. Chua. The NLRC concluded that his open fracture must have been sustained after he was declared fit to work on December 21, 2009.
The CA opined, as the NLRC did, that the findings of Dr. Lim and Dr. Chua should have been given credence. For the appellate court, the extensive medical attention given by the company-designated physicians to Daraug from the very beginning enabled them to be familiar with, and acquire a detailed knowledge of, his medical condition, as compared to just one (1) day of examination by Dr. Jacinto. For said reason, the CA concluded that Daraug was no longer entitled to disability benefits when he was declared fit to work by the company-designated physicians.
Hence, this petition.
Whether the findings of the LA were final and binding upon the courts
Whether or not the seafarer’s claim for disability can be upheld despite the medical findings of company physicians that he is fit to work.
Daraug is in error in its submission that the findings of the LA in labor cases were final and binding upon courts exercising appellate jurisdiction. The general rule is that due to its recognized expertise as a result of its specific jurisdiction, the findings of the LA are accorded great respect if: one, they concurred with the findings of the NLRC; and two, if they are supported by substantial evidence.
The foregoing rule is not absolute and admits of exceptions. Thus, in the following instances, the Court is compelled to resolve both factual issues along with the legal ones: (1) when the findings are grounded entirely on speculations, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in making its findings, the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the Daraug’s main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; or (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion.
In the case at bench, the factual findings of the LA differ from those of the NLRC and the CA. This divergence of positions constrains the Court to review and evaluate assiduously the evidence on record and determine whether or not Daraug is entitled to disability benefits.
Daraug did not comply with the procedures. If a doctor appointed by the seafarer disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the seafarer.
On the other hand, the CBA between Daraug and KGJS, et al. states that if a doctor appointed by the seafarer and his Union disagrees with the assessment, a third doctor may be agreed jointly between the Employer and the Seafarer and his Union, and the third doctor’s decision shall be final and binding on both parties.
The Court ruled, in the case of Philippine Hammonia Ship Agency, Inc. vs. Dumadag (Dumagdag), that a seafarer’s non-compliance with the mandated procedure under the POEA-SEC and the CBA militates against his claims.
As in Dumadag, Daraug in this case failed to observe the prescribed procedure of having the conflicting assessments on his disability referred to a third doctor for a binding opinion. Considering that Daraug failed to observe the procedures laid down in the POEA-SEC and CBA, the Court is left without a choice but to uphold the certification issued by KGJS, et al.’ physicians with respect to his fitness or disability.
Actually, Daraug’s filing of his claim was premature. The Court has held that a seafarer may have basis to pursue an action for total and permanent disability benefits, if the company-designated physician declared that he is fit for sea duty within the 120-day or 240-day period, as the case may be, but his physician of choice and the doctor chosen under Section 20-B(3) of the POEA-SEC are of a contrary opinion.
When Daraug filed his complaint with the arbitration office, he had yet to consult his own physician, Dr. Jacinto. It means that, at that time, he was simply armed with: 1] the medical findings of the company-designated physician that he was fit to work; and 2] his Affidavit Complaint where he made his own conclusion that his right leg was again fractured because of the incident that occurred in the M/V Ibis Arrow.
Aside from the finding of the company-designated physicians, it is worthy to note that the evidence on record indubitably shows that Daraug continued to work as a seaman under another employer.