Temporary total disability shall be deemed permanent and total if it lasts continuously for more than 120 days except as otherwise provided in the Rules.
Ricky B. Tulabing vs. MST Marine Services (Phils.), Inc., TSM International Ltd., and/or Capt. Alfonso R. Del Castillo/MST Marine Services (Phils.), Inc., TSM International Ltd., and/or Capt. Alfonso R. Del Castillo vs. Ricky B. Tulabing
G.R. No. 202113/G.R. No. 202120, June 6, 2018
240-day rule; Disability claim; Company-designated physician; Personal physician; Third doctor;
MST is a Philippine-registered manning agency engaged in the recruitment of seafarers for its foreign principal, TSM, a Norwegian shipping company.
Tulabing is a seafarer formerly under the employ of TSM. His employment was covered by the Norwegian International Ship Register collective bargaining agreement (NIS-CBA), between the Norwegian Shipowners’ Association (NSA), on the one hand, and the Associate Marine Officers’ and Seamen’s Union of the Philippines (AMOSUP) and the Norwegian Seafarer’s Union (NSU), on the other.
Thereafter, MST, in behalf of TSM, employed Tulabing as GP2 Wiper for the vessel M/T Champion. Covered by a Philippine Overseas Employment Administration (POEA)-approved Contract of Employment, Tulabing’s employment was for a period of nine months.
While engaged in the performance of his duties, Tulabing felt a sudden crack on his back which was followed by a severe pain and numbness of the left side of his body. He was referred to a physician in Brazil for medical evaluation and was given medicine. Initially, the medicine accorded Tulabing some relief from the pain but eventually his condition aggravated and radiated to his left shoulder and upper extremities.
Subsequently, Tulabing complained of chest pain, hence, he was referred by the vessel master to Dr. J.J. Voorsluis (Dr. Voorsluis) of the Medical Centre for Seamen in Amsterdam, Netherlands for medical examination. Dr. Voorsluis diagnosed him of cervical neuralgia and prescribed him oral medication therefor. He was declared unfit to work for four days with the recommendation that should his medical condition fail to improve, he should be repatriated back to the Philippines.
On June 13, 2008, Tulabing was repatriated back to the Philippines. On June 17, 2008, Tulabing reported to Dr. Nicomedes Cruz (Dr. Cruz), the company-designated physician for medical evaluation. Dr. Cruz confirmed Dr. Voorsluis’ diagnosis of Tulabing’ s cervical neuralgia and noted the persistence of his upper back pain which continued to radiate to his left shoulder and upper left extremities. Dr. Cruz issued a Medical Report, ordering an x-ray of Tulabing’ s cervical spine and his referral to an orthopedic surgeon for specialized examination, and directing him to return for further evaluation.
Dr. Cruz, following the orthopedic surgeon’s evaluation of Tulabing’s condition, issued a second Medical Report finding him to have Cervical spondylosis C4C5 and C5C6 and Reversal of cervical lordosis. He recommended MRI of the cervical spine and advised referral to rehabilitation medicine for physical therapy.
Tulabing underwent physical rehabilitation under the medical attention of specialist Dr. Reynaldo Matias (Dr. Matias). Dr. Matias, who regularly submitted to Dr. Cruz his evaluations of Tulabing’s condition, suggested that on the basis thereof Dr. Cruz give Tulabing a disability grading.
Dr. Cruz assessed Tulabing’s condition as Grade 10 disability. Tulabing, however, did not agree. He demanded from MST the payment of maximum disability compensation in the amount of US$70,000.00 pursuant to Article 12 of the NIS-CBA.
MST denied Tulabing’s claim and instead offered him compensation in the amount of US$14,105.00. Tulabing refused the offer, insisting that his disability was permanent and total, hence, his entitlement to full compensation. In an attempt at an amicable settlement, the parties initially submitted the dispute to the AMOSUP pursuant to the grievance procedure specified in the NIS-CBA but no settlement was obtained thereat.
Tulabing filed with the National Labor Relations Commission (NLRC) a complaint against MST for payment of permanent total disability benefits of US$70,000.00 pursuant to the NIS-CBA, reimbursement of medical expenses, and payment of moral and exemplary damages as well as attorney’s fees. Tulabing claimed that his disability was of such nature that no amount of medication or therapy can restore him to his former physical condition and enable him to resume his customary work and that based on the medical findings, the severity of his disability rendered remote and uncertain the possibility of his future employment for overseas work.
MST denied liability on the ground that under the provisions of his employment contract and the NIS-CBA, a seafarer is only entitled to claim maximum disability compensation of US$70,000.00 if the company-designated physician declares him to be suffering from Grade 1 disability. They likewise denied liability for damages and attorney’s fees, contending good faith and full compliance with their contractual obligations, viz.: (1) that Tulabing received full monetary provision for his medical expenses prior and subsequent to his repatriation; and (2) that Tulabing was offered a just disability settlement in the amount of US$14,105.00 as sanctioned by the POEA-SEC and the NIS-CBA.
The Labor Arbiter (LA) rendered a Decision in favor of MST, ordering the latter to pay Tulabing the amount of US$14,105.00 and attorney’s fees equivalent to 10% of the amount adjudged.
Unsatisfied with the LA ‘s award of disability compensation, Tulabing appealed to the NLRC, asserting his entitlement to the full permanent total disability compensation of $70,000.00.
During the pendency of his appeal, Tulabing consulted mihopedic surgeon Dr. Alan Leonardo Raymundo (Dr. Raymundo) of the Philippine Orthopedic Institute, Makati City. In a Medical Report, Dr. Raymundo diagnosed Tulabing of cervical neuropraxia and declared him unfit for resumption of duty.
The NLRC rendered its Decision, setting aside the LA’s decision.
The NLRC held MST, et al. liable to pay Tulabing the amount of SEVENTY THOUSAND ($70,000.00) US DOLLARS or its peso equivalent at the time of actual payment representing his disability benefits, plus 10% attorney’s fees.
MST moved for reconsideration but the same was denied by the NLRC. Undeterred, MST filed a petition for certiorari in the CA imputing grave abuse of discretion on the NLRC in awarding full disability benefits and attorney’s fees to Tulabing.
The CA rendered a Decision affirming the earlier decision of the NLRC but modified the award of attorney’s fees reducing it to US$1,000.00.
Both parties filed their respective motions for reconsideration but the same were denied by the CA. Hence, consolidated petitions before the SC.
Whether or not the disability grading of company-designated physician made within the 240-day period is the final and definite assessment in the absence the finding of personal physician or third doctor
The SC found the petition of MST impressed with merit.
The SC held that Article 192(c)(1) of the Labor Code expressly provides that temporary total disability shall be deemed permanent and total if it lasts continuously for more than 120 days except as otherwise provided in the Rules.
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In the recent case of TSM Shipping Phils. Inc. vs. Patiño, the “Rule” referred to in this Labor Code provision is Section 2, Rule X of the Amended Rules on Employees’ Compensation Implementing Title II, Book IV of the Labor Code. This provides that 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.
Thus, by correlating and harmonizing the provisions of Article 192( c )( 1) of the Labor Code and Section 2, Rule X of the Amended Rules on Employees’ Compensation, the prevailing rule as it now stands is that the 120-day initial period may be extended for the purpose of determining the seafarer’s grade of disability.
The company-designated physician gave a final disability grading, Tulabing never consulted with another physician. Stated otherwise, the only assessment or grading that existed at that time was the grading given by Dr. Cruz, the company-designated physician. Since the disability grading was given by Dr. Cruz on November 14, 2008, or only 150 days after Tulabing’s first medical evaluation from repatriation, it was well within the 240-day period.
Dr. Cruz’s second medical report which referred Tulabing to undergo physical rehabilitation, justified the extension of the 120-day period to an additional 31 days. That he was not able to give a disability grading during the 120-day period notwithstanding the fact that evaluations were made, only bolsters the conclusion that he was thorough in his assessment.
Being the company-designated physician who observed, studied and evaluated Tulabing’s medical condition from the time the latter was repatriated back to the Philippines up until the time he was undergoing physical rehabilitation, Dr. Cruz’s assessment stands in the absence of evidence to the contrary.
The only instance when the assessment of a company-designated physician may be challenged is when the seafarer likewise consulted with his personal physician who issued a different assessment. The conflicting assessments shall be settled by referring the matter to a neutral third-party physician, whose assessment shall be final and binding.
Tulabing only sought a second opinion and consulted Dr. Raymundo when the LA decided against his claim of full disability benefits. His appeal was already pending with the NLRC when such consultation was made. This move on Tulabing’s part appears to be nothing but a mere afterthought given the length of time that has already passed since Dr. Cruz’s final assessment.
Tulabing’s disability was due to an injury he sustained while engaged in the performance of his work as MST’s employee. Under the provisions of the parties’ NIS-CBA, the maximum disability compensation that may be paid to an employee is US$70,000.00. Award of this maximum amount, however, presupposes a disability grading of “1” or permanent and total disability. In the case at bench, the company-designated physician gave Tulabing a final and definite assessment of Grade 10 disability only.
Moreover, even if the Court were to consider the irrationally late assessment issued by Dr. Raymundo, the assessment of Dr. Cruz must still prevail for failure of the parties to refer the matter to a third-party physician, as required by the Rules and jurisprudence.