PERMANENT TOTAL DISABILITY DOES NOT ARISE WHERE COMPLAINT WAS FILED BEFORE THE 240-DAY PERIOD EXPIRED

Permanent total disability cannot be legally presumed since the company-designated doctor has not declared that the seafarer is not fit to work within the 240-day period, and the 240-day period has not lapsed when he filed his complaint.

Thus, the SC held in the case as follows:

Gomez vs. Crossworld Marine Services, Inc.
G.R. No. 220002, August 2, 2017

Facts:

Respondent Crossworld Marine Services, Inc. (Crossworld Marine), in behalf of its principal, Golden Union Shipping Company, hired Gomez Eugenio M. Gomez (Gomez) as an Ordinary Seaman in the vessel MN Elena VE for a period of 11 months.

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On board, the Chief Officer of the vessel told Gomez to remove the ice from the lower and upper decks of the ship. While performing this task, Gomez accidentally slipped and hit his lower back on the steel deck. Gomez was immediately in pain, but thought it was just temporary. He rested a moment and then continued to work despite the pain. He reported the incident to his superior when he asked for pain relievers.

After 15 days, Gomez could no longer bear the pain on his back and went to the vessel’s master and requested for medical examination. He was told to go to the hospital the next day. Gomez was examined and treated in Belgium. He was diagnosed with Lumbago. The doctor-in-charge recommended Gomez’s repatriation for further treatment.

Gomez was repatriated to the Philippines on March 18, 2012. Gomez arrived in the Philippines on March 19, 2012.

The next day, Gomez reported to Crossworld Marines and requested for further medical examination and treatment. Gomez was referred to the company’s accredited doctors at the International Health Aide Diagnostic Services, Inc. (IHADS) for medical evaluation. He underwent six sessions of physical therapy, but the pain in his lumbar area still persisted.

Later, IHADS referred Gomez for magnetic resonance imaging (MRI) of his lumbosacral spine at the University Physicians Medical Center. Gomez was hospitalized at the Medical Center to undergo two surgical procedures as advised by the company doctor.

The Record of Operation showed the preoperative diagnosis slipped disc, L4-L5, L5-S 1. Gomez was discharged from the hospital with home medication. The company-designated doctor, Dr. Ma. Dolores Tay, submitted a medical report to Captain Eleazar Diaz, president of Crossworld Marine Crossworld Marine Services, Inc., stating that Gomez can walk without difficulty, but Gomez complained about a mild pain on the left buttock area on prolonged sitting or standing; mild activities are allowed. She issued the interim disability assessment is Grade 8 based on the POEA Contract Schedule of Disability.

On September 11, 2012, Dr. Tay submitted another report on the condition of Gomez to the President of Crossworld Marine Crossworld Marine Services, Inc., stating, among others, that functional capacity testing was done according to his job description which he did not pass due to back pain on certain motions.

Gomez went to see another physician, Dr. Renato P. Runas, an orthopedic surgeon, for a second opinion regarding his low back pain. In a Medical Evaluation Report dated September 7, 2012,21 Dr. Runas made findings that Gomez is still incapacitated due to pain on the lower back with numbness of the left lower extremity. Lower back pain is triggered by exertion. He cannot tolerate prolonged walking and standing because of pain. Forward and backward trunk motion is limited because of pain. He has difficulty standing from a sitting position.

Further, Dr. Runas stated that the surgery has lessened the intensity of pain but he did not regain his physical capacity to work. As an Ordinary Seaman, he does strenuous and heavy jobs which are no longer possible after the surgery. He needs complete activity modification to avoid further damage to the spine. He is unfit for sea duty in whatever capacity with a permanent disability since he can no longer perform his work which he is previously engaged in.

Gomez asked Crossworld Marines for payment of his disability benefits, but Crossworld Marines refused. Efforts toward an amicable settlement was unsuccessful. Hence, on September 13, 2012, Gomez filed a complaint before the Labor Arbiter, praying that his disability be declared as work-related, total and permanent, and that Crossworld Marines be declared solidarily liable to pay him permanent total disability benefit, moral and exemplary damages and attorney’s fees.

LA Ruling:

The Labor Arbiter held that Gomez was permanently and totally disabled and that he could no longer resume sea duty.

The Labor Arbiter cited the medical report dated September 11, 2012 of the company-designated physician, which stated that Gomez did not pass the functional capacity test done according to Gomez’s job description and he should continue flexibility and strength exercises through his physiatrist.

The Labor Arbiter found as unmeritorious Crossworld Marine’s contention that Gomez’s resumption of work at sea is expected, because Gomez did not pass the functional capacity test and was required to continue physical therapy, and he was still suffering from disability and has not returned to his previous job for more than 120 days.

The Labor Arbiter stated that while the company-designated physicians did not state in categorical terms that Gomez was permanently disabled, they did not also state that he was already fit to work with disability Grade 8 and Gomez has not returned to his previous job for more than 120 days.

Crossworld Marines appealed the Decision of the Labor Arbiter to the National Labor Relations Commission (NLRC).

NLRC Ruling:

The NLRC affirmed the Decision of the Labor Arbiter.

The NLRC held that permanent total disability does not mean absolute helplessness. It 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 can do.

Crossworld Marines filed a petition for certiorari with the Court of Appeals, alleging that the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction in affirming the award in favor of Gomez of full disability benefit.

CA Ruling:

The Court of Appeals found that the evidence clearly established that Gomez’s injury rendered him permanently disabled, which hindered him from performing the work he was trained for or accustomed to do. Despite immediate and extensive medical treatment which lasted for six months or 180 days, the company-designated physician’s assessment of Gomez’s injury did not show remarkable progress. The surgical procedures (laminectomy and foraminotomy) performed to address Gomez’s herniated discs did not entirely free him from low back pain.

As between Dr. Runas’ express declaration that Gomez is suffering from permanent disability and Dr. Tay’ s more positive assessment, the Court of Appeals gave merit to Dr. Runas’ assessment that Gomez is suffering from permanent disability.

However, the Court of Appeals stated that the issue of whether or not the injury of Gomez is total or partial is another matter as the NLRC failed to state the factual basis in declaring Gomez totally The findings of Dr. Runas was silent with respect to the disability grade of Gomez. It noted that Gomez’s injury is not among those listed under Section 32 of the POEA SEC with Grade 1 impediment, which is considered as total disability.

The Court of Appeals said that the Labor Arbiter’s reliance on Article 192 of the Labor Code, which provides that temporary total disability lasting continuously for more than 120 days shall be deemed total and permanent, cannot be applied in this case. Prevailing jurisprudence clarifies that when the seafarer who is suffering from an illness or injury needs further treatment in order to fully recover, the period of 120 days may be extended up to 240 days. It is only when the company-designated physician fails to arrive at a definite assessment of the seafarer’s fitness to work or disability within the 240-day period that the seafarer shall be deemed permanently and totally disabled.

Court of Appeals held that in this case, the legal presumption of permanent total disability does not operate in favor of Gomez as he filed his complaint only on September 13, 2012 following his repatriation on March 19, 2012. Gomez filed his complaint 179 days from the date of his repatriation or before the lapse of the 240-day period upon which Dr. Tay may make her final assessment of Gomez’s medical condition.

Thus, the CA declared Gomez to have suffered permanent partial disability with an impediment of Grade 8. The CA ordered Crossworld Marine Services, Inc., Golden Union Shipping Company, S.A. and Eleazar Diaz jointly and severally liable to pay Gomez his disability compensation in the amount of US$30,527.26 or its peso equivalent at the exchange rate prevailing at the time of actual payment as well as attorney’s fees equivalent to 10% of the said amount due.

Issue/s:

Whether or not there is permanent total disability despite the disability rating of Grade 8.

Whether or not failure to pass the functional capacity test automatically renders disability total and permanent

Whether or not absence of declaration of fitness to work within the period required by law renders disability total and permanent

Whether or not the “uncertain effect of further treatment” ruling applies in this case where the seafarer failed the functional capacity test.

SC:

A seafarer’s right to disability benefits is a matter governed by law, contract and medical findings. The material legal provisions are Articles 191 to 19347 of the Labor Code, in relation to Section 2, Rule X of the Amended Rules on Employees’ Compensation. The relevant contracts are the POEA SEC and the CBA.

The rule referred to by Article 192 (c) (1) of the Labor Code is Rule X, Section 2 of the Rules and Regulations Implementing Book IV of the Labor Code, which states that 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.

A temporary total disability only becomes permanent when so declared by the company-designated physician within the periods he/she is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability.

In this case, the treatment of Gomez’s injury required spine surgery and physical therapy which extended beyond the initial 120-day period into the maximum 240-day treatment period. The company-designated doctor’s medical report dated September 11, 2017 (made 195 days from the time Gomez was injured on February 29, 2012) stated that Gomez failed the functional capacity test and recommended that Gomez continue therapy for two to three months.

Gomez filed his complaint on September 13, 2012 or 197 days from the date he was injured, and, therefore, before the lapse of the maximum 240-day treatment period within which the company-designated physician should assess the fitness of Gomez to return to work.

Since the company-designated doctor has not declared that Gomez is not fit to work within the 240-day period, and the 240-day period has not lapsed when Gomez filed his complaint, Gomez cannot be legally presumed as permanently and totally disabled to be entitled to permanent total disability. The rule is that a temporary total disability only becomes permanent when the company-designated physician, within the 240-day period, declares it to be so, or when after the lapse of the same, he/she fails to make such declaration.

The Court concurs with the Court of Appeals’ finding that Gomez suffers from a partial permanent disability grade of 8 given by the company-designated doctor based on the POEA SEC Schedule of Disability. The disability grade is in accordance with Section 20-A (6) of the POEA SEC, which states: “The disability shall be based solely on the disability gradings provided under Section 32 of this Contract, and shall not be measured or determined by the number of days a seafarer is under treatment or the number of days in which sickness allowance is paid.

As regards Dr. Tay’s advice that Gomez should continue therapy for two to three months because he failed the functional capacity test, Gomez cited Esguerra vs. United Philippines Lines, Inc. which held that the uncertain effect of further treatment intimates nothing more but that the injury sustained by the seafarer bars him from performing his customary and strenuous work as a seafarer/fitter. As such, he is considered permanently and totally ‘disabled.

The SC held that this case is different from Esguerra. In Esguerra, the Court found that the orthopedic surgeon designated by the Crossworld Marines therein and the independent specialist of Gomez therein were one in declaring that Gomez therein was permanently unfit for sea duty. Esguerra’s doctor categorically stated in a medical certificate that he was permanently unfit for sea-faring duty, while the report of company’s designated-surgeon conveyed a similar conclusion stating that “further treatment would probably be of some benefit but will not guarantee the seafarer’s fitness to work.” Hence, the Court held in Esguerra that the uncertain effect of further treatment intimates nothing more but that the injury sustained by Gomez bars him from performing his customary and strenuous work as a seafarer/fitter. As such, he is considered permanently and totally disabled.

In this case, the company-designated doctor’s prognosis of Gomez’s fitness to resume sea duty was fair to good, and she recommended   that   Gomez should continue flexibility and strength exercises through his physiatrist.