CASE DIGEST: Barko International v. Alcayno

G.R. No. 188190 : April 21, 2014




On November 18, 2005, the respondent was employed by Fuyo Kaiun Co. Ltd. through its local manning agent, Barko International, Inc. (petitioners), as Able-bodied Seaman. The employment contract provided for a contract period of nine months with a basic monthly salary of US$539.00, a fixed overtime pay in the amount of US$401.00 plus vacation leave with pay. His prime duty, among others, was to paint and chip rust on deck or superstructure of ship and to give directions to the crew engaged in cleaning wheelhouse and quarterdeck on board the vessel, M/V Cape Iris. Having passed the required Pre-Employment Medical Examination (PEME) and found fit for sea service, the respondent boarded the ocean vessel M/V Cape Iris on December 1, 2005.

After one month on board the vessel, the respondent complained of stiff neck, and his right jaw started to swell. His physical condition worsened despite medications given him on board until he signed off on February 2, 2006 at the port of the Suez Canal, Egypt where he was examined by a certain Dr. Michael H. Mohsen (Dr. Mohsen) of the Dr. Nazmy Hospital. Dr. Mohsens diagnosis stated that the respondent had a firm mass in the left side of neck with severe diffuse infection and pus collection in the neck, gangrene and necrosis in skin and tissues of neck, Uncontrolled D.M., Toxaemia and this condition may be due to chronic disease or malignancy. The Medical Report issued by the Dr. Nazmy Hospital recommended hospital confinement.

On February 8, 2006, the respondent was repatriated to the Philippines.

Upon arrival in Manila, the respondent was examined by Dr. Nicomedes G. Cruz (Dr. Cruz), a company-designated physician. The diagnosis indicated: Uncontrolled diabetes mellitus and tuberculous adenitis. The respondent was placed under a six-month anti-tuberculosis treatment.

As early as June 23, 2006, the respondent consulted a private physician, Dr. Regina Pascua Barba, who also medically assessed him to be suffering from cervical tuberculosis adenitis as similarly assessed by the company-designated physician. She recommended continuous treatment and medication for the respondent until January 2007.

On July 6, 2006, the respondent filed a complaint for disability benefits, reimbursement of medical expenses, payment of the unexpired portion of his contract, moral and exemplary damages and attorneys fees against the petitioners. To support his claim, he alleged that his illness was contracted while he was on board M/V Cape Iris; that he was repatriated for medical reasons and was treated for more than 120 days; and, that he suffered a permanent total disability with Grade 1 impediment. Thus, he should be compensated by the petitioners.

The petitioners denied the claim and averred that a company-designated physician, in fact, issued a handwritten medical evaluation on August 17, 2006 finding his condition well-controlled, asymptomatic, and stable and therefore, physically fit to resume work anytime. On August 22, 2006, Dr. Cruz declared the respondent fit to work on even date after completion of the anti-Kochs medication for six months. Such fact was not disputed; hence, there is no disability to speak of.

In a Decision dated April 10, 2007, the LA granted the claim of the respondent. In a Resolution dated November 29, 2007, the NLRC reversed the decision of the LA as it found no factual and legal basis to support the respondents allegation that the tuberculous adenitis and diabetes mellitus were contracted while on board the vessel in order for it to be considered as compensable.Undaunted, the respondent sought relief to the CA via petition for certiorari. The CA granted the petition and reversed the resolution of the NLRC.

ISSUE: Whether Alcayno is entitled to his disability benefit

HELD: The petition is devoid of merit. The Court finds no cogent reason to deviate from the factual findings of the LA, as affirmed by the CA.

REMEDIAL LAW: burden of proof

Settled is the rule that the burden of proof rests upon the party who asserts the affirmative of an issue. In labor cases, the quantum of proof necessary is substantial evidence, or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. In disability claims, as in the case at bar, the employee bears the onus to prove by substantial evidence his own positive assertions.

In the instant case, the respondent went through the PEME. While there was a notation of pulmonary fibrosis right lower lung with calcified benign nodules cleared by the pulmonary specialist in said report, he was declared fit for sea duties. The respondent was able to board the vessel on December 1, 2005. On February 8, 2006, he was repatriated to Manila on medical grounds. He was diagnosed to be suffering mainly from tuberculous adenitis and was treated thereof. The respondent asserted that he contracted the illness while on board the vessel. Notwithstanding the medical treatment he underwent, he was unable to go back to his sea duties for a period of more than one hundred twenty (120) days.

The Court finds merit in the respondents contention regarding the suspicious gesture of the petitioners in having a medical certification declaring him as fit to work despite apparent clear knowledge that he has been subjected to a long period of medical treatment. Both the company-designated physician and the respondents private physician had similar findings that the respondent is suffering from tuberculous adenitis which is occupational in character and compensable under the attendant circumstances.

Under Section 32-A (18) of the POEA Memorandum Circular No. 09, Series of 2000, Pulmonary Tuberculosis shall be considered as an occupational disease in any occupation involving constant exposure to harmful substances in the working environment in the form of gases, fumes, vapors and dust. It is well to point out that among respondents daily tasks as an able bodied seaman were to paint and chip rust on deck or superstructure of ship and to give directions to crew engaged in cleaning wheelhouse and quarterdeck, which constantly exposed him to different types of hazardous chemicals, such as paints, thinners, and other forms of cleaning agents and harmful substances, that may have invariably contributed to the aggravation of his illness.

Indeed, the fact that a certification declaring the respondent as fit to work contrary to a prior finding of tuberculosis can be considered as a ploy to circumvent the law intended to defeat the respondents right to be compensated for a disability which the law considers as permanent and total.

LABOR LAW: permanent total disability

Permanent total disability means disablement of an employee to earn wages in the same kind of work or work of a 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.

Clearly, the sickness is work-related and regarded as an occupational disease. Thus, the same is compensable.

Again, what is important is that he was unable to perform his customary work for more than 120 days which constitutes permanent total disability, and not the actual injury itself. Undoubtedly, the illness of the respondent which incapacitated him to work more than 120 days after repatriation is considered as work-related which entitles him to disability benefits.

WHEREFORE, the petition is DENIED.