G.R. No. 223732. Jan 16, 2019

THIRD DIVISION [G.R. No. 223732, January 16, 2019] ARSENIO N. ESCABUSA, PETITIONER V. VERITAS MARITIME CORP. AND TNCK KLINE AND/OR ERICSON MARQUEZ, RESPONDENTS.

This resolves a Petition for Review on Certiorari[1] of the November 13, 2015 Decision[2] and March 28, 2016 Resolution[3] of the Court of Appeals in CA-G.R. SP No. 134176. It affirmed the National Labor Relations Commission Decision,[4] which in turn upheld the Labor Arbiter's Decision[5] to dismiss Arsenio N. Escabusa's (Escabusa) Complaint for permanent disability benefits and his subsequent Motion for Reconsideration.

Veritas Maritime Corp. hired Escabusa as a bosun on board M/V Bangkok Highway,[6] a vessel owned by TNCK Kline.[7] The nine (9)-month employment contract entailed a monthly salary of US$599.00.[8] Escabusa claimed that his employment contract was a "renewal or re-engaged series contract"[9] with Veritas Maritime Corp. and TNCK Kline and/or Ericson Marquez (Veritas Maritime Corp., et al).

Escabusa underwent a pre-employment medical examination at the Kline Medical Center, and was declared fit for sea duty without restriction.[10] He boarded the vessel on October 15, 2011.[11]

Escabusa stated that his duties and responsibilities include "maintaining the cleanliness of the vessel's rooms, central room alleys[,] and small warehouse for equipment, as well as cleaning out steel rusts of the vessel's allevs, rooms, and floor, before applying them with thinners, paints[,] and chemicals."[12]

On February 10, 2012, while he was on official duty, Escabusa claimed that a thinner solution spilled over his face, neck, chest, and arm. These areas suffered a third-degree burn.[13]

Veritas Maritime Corp., et al. denied that Escabusa's duties as bosun involved an exposure to chemicals and other solvents.[14] They contended that Escabusa was "not tasked with painting and rust removal,"[15] rather, he was tasked "to supervise the deck-ratings on-board vessel and ensure that the deck ratings are performing their duties properly."[16]

When the vessel reached the port in Korea, Escabusa was brought to Dr. Kim Sung Jin, who diagnosed[17] him to have suffered about a 15% to 20% third-degree burn. The physician declared him unfit for work, and recommended that he be immediately hospitalized for special burn treatment.[18]

Once he arrived in the Philippines on February 23, 2012, Escabusa reported to Veritas Maritime Corp. and the company-designated physician, Dr. Ana Ma. Luisa Javier (Dr. Javier) of the Manila Doctors Hospital.[19] He was later placed under the care of a dermatologist, Dr. Mary Ann Abesamis (Dr. Abesamis), who diagnosed him with contact dermatitis.[20]

On May 25, 2012, Dr. Abesamis[21] declared him fit to go back to work.[22]

Escabusa consulted another dermatologist at the St. Luke's Medical Center, Dr. Lonabel A. Encarnacion (Dr. Encarnacion), who performed a patch test on him.[23] Its result, dated June 22, 2012, showed:
The 70-allergen patch test series showed the following reaction:
#7. Nickel Hexahydrate - +1, +1
#19. Fragrance Mix - +2, +2
#55. Clioquinol-+1,+1
These are weak patch test positive reactions. This is signed out as NEGATIVE Patch Test. This means that the patient has IRRITANT CONTACT DERMATITIS[.]

Recommendation:
1. Avoid exposure to usual strong chemicals like thinner and other solvents.

2. Use moisturizers to prevent drying of skin specially (sic) during cold weather and in cold air conditioned areas.[24]
Escabusa also consulted Dr. James G. Sombrio of the Ramiro Community Hospital in Tagbilaran City, Bohol,[25] who allegedly declared "thatheisnotyetwell[.]"[26]

On July 27, 2012, Escabusa filed a Complaint against Veritas Maritime Corp., et al. for payment of total and permanent total disability benefits, moral and exemplary damages, and attorney's fees.[27]

In a January 31, 2013 Decision, the Labor Arbiter dismissed Escabusa's Complaint for lack of merit,[28] giving more credence to the medical findings of Dr. Abesamis, who declared Escabusa as fit to, go back
to work.[29]

On Escabusa's Appeal, the National Labor Relations Commission affirmed the Labor Arbiter's Decision. In its October 30, 2013 Decision, it "ruled that only the company-designated physician's finding could be considered, pursuant to Section 20(B) of the [Philippine Overseas Employment Administration] Standard Employment Contract, which requires the opinion of a third physician agreed upon by the parties if the findings of the company-designated physician and the physician appointed by the worker are different."[30]

Escabusa filed a Motion for Reconsideration, which the National Labor Relations Commission denied in its January 15, 2014 Resolution.[31]

Aggrieved, Escabusa filed a Petition for Certiorari before the Court of Appeals. However, in its November 13, 2015 Decision, the Court of Appeals denied Escabusa's Petition and affirmed the National Labor Relations Commission's Decision. It held that Escabusa did not comply with the prescribed procedure under Section 20(B) of the Philippine Overseas Employment Administration Standard Employment Contract (POEA Standard Employment Contract). Hence, the company-designated physician's findings, not the findings of the physicians Escabusa chose, must prevail.[32] It further noted that the Medical Certificates Escabusa presented did not categorically state that he was unfit to go back to work.[33]

Petitioner filed a Motion for Reconsideration, but it was denied in the Court of Appeals March 28, 2016 Resolution.[34]

Hence, this Petition[35] was filed.

Petitioner Arsenio N. Escabusa insists that he is entitled to disability compensation under the POEA Standard Employment Contract,[36] based on his doctors' findings that he was unfit to go back to work.[37]

The Petition lacks merit.

The POEA Standard Employment Contract, deemed read and incorporated into petitioner's employment contract, governs petitioner's claims for disability benefits. The 2010 Amended Guidelines[38] applies since petitioner was hired in 2011, and filed his Complaint in 2012.
Section 20(A) of the POEA Standard Employment Contract provides:

SECTION 20. Compensation and Benefits. —
A. Compensation and Benefits for Injury or Illness

2. ... 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.

3. …
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. (Emphasis supplied)
Section 20(A) of the POEA Standard Employment Contract states that the company-designated physician determines a seafarer's fitness to work or degree of disability. Nonetheless, the seafarer may dispute the company-designated physician's report by seasonably consulting another doctor.

The employment contract further provides the examination of a third doctor, agreed upon by petitioner and respondents, in case of a discrepancy between the assessments of the seafarer's doctor and the company-designated physician. This referral to a third doctor was held to be a mandatory procedure that must be strictly followed.[39]

In INC Navigation Co. Philippines, Inc., et al. v. Rosales,[40] this Court clarified how this conflict situation should proceed:
[U]pon notification that the seafarer disagrees with the company doctor's assessment based on the duly and fully disclosed contrary assessment from the seafarer's own doctor, the seafarer shall then signify his intention to resolve the conflict by the referral of the conflicting assessments to a third doctor whose ruling, under the POEA-SEC, shall be final and binding on the parties. Upon notification, the company carries the burden of initiating the process for the referral to a third doctor commonly agreed between the parties. In Bahia, we said:
In the absence of any request from him (as shown by the records of the case), the employer-company cannot be expected to respond. As the party seeking to impugn the certification that the law itself recognizes as prevailing, Constantino bears the burden of positive action to prove that his doctor's findings are correct, as well as the burden to notify the company that a contrary finding had been made by his own physician. Upon such notification, the company must itself respond by setting into motion the process of choosing a third doctor who, as the POEA-SEC provides, can rule with finality on the disputed medical situation.

In the absence of a third doctor resolution of the conflicting assessments between Dr. Lim and Dr. Almeda, Dr. Lim's assessment of Constantino's health should stand. Thus, the CA's conclusion that Constantino's inability to work for more than 120 days rendered him permanently disabled cannot be sustained.[41] (Citation omitted)
The third doctor rule, however, presupposes that the company-designated physician issued a valid, final, and definite assessment of the seafarer's disability within the 120-day or 240-day extended period.[42] In Kestrel Shipping Co., Inc., et al. v. Munar:[43]
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[44] (Emphasis supplied)
On May 25, 2012, about three (3) months from his repatriation, petitioner was declared fit to work by the company-designated physician. He did not avail of the procedure under the POEA Standard Employment Contract to challenge the company doctor's assessment.[45] The Court of Appeals even noted that he has never informed respondents of his consultations with Dr. Encarnacion and Dr. Sombrio prior to his filing of a Complaint before the Labor Arbiter.[46]

Petitioner's noncompliance with the third doctor rule constitutes a breach of the POEA Standard Employment Contract,[47] and renders his Complaint dismissible for being premature.[48] This Court has several times held[49] that the company-designated physician's findings in such a case would prevail.

In Nonay v. Bahia Shipping Services, Inc., et al.,[50] however, this Court clarified that this is "not a hard and fast rule." The company-designated physician's reports may be set aside if found to be biased and doubtful:
Based on jurisprudence, the findings of the company-designated physician prevail in cases where the seafarer did not observe the third-doctor referral provision in the POEA Standard Employment Contract. However, if the findings of the company-designated physician are clearly biased in favor of the employer, then courts may give greater weight to the findings of the seafarer's personal physician. Clear bias on the part of the company-designated physician may be shown if there is no scientific relation between the diagnosis and the symptoms felt by the seafarer, or if the final assessment of the company-designated physician is not supported by the medical records of the seafarer.[51] (Emphasis supplied)
Nonetheless, the exception does not apply here. Petitioner failed to sufficiently show that the assessment of the company-designated physician was arrived at arbitrarily or was biased in the company's favor. Further, he did not contest the company-designated physician's competence.[52]

At any rate, the Court of Appeals found that petitioner's own Medical Certificates did not categorically state that he was unfit to go back to work:
[A]s correctly ruled by the Labor Arbiter and public respondent, the medical certificates presented by petitioner do not categorically state that he is unfit to go back to work. The diagnosis in the medical certificate issued by Dr. Sombrio states:
Repeat patch test to suspected chemicals to confirm my diagnosis, cessation of exposure to suspected/causative chemicals with possible change of job/profession, or workplace, to follow other recommendations from the Environmental Dermatologist as written on Mr. Escabusa's previous Patch test result dated June 22, 2012 as follows: to avoid exposure to usual strong chemicals like thinner and other solvents, use of moisturizers to prevent drying of skin especially during cold weather and in cold air-conditioned rooms.
Nowhere in the above diagnosis did Dr. Sombrio categorically state that petitioner is unfit to work. Dr. Sombrio even used the terms "suspected chemicals" and "possible change of job/profession," which further indicates the uncertainty of the condition of petitioner vis-a-vis his ability or inability to go back to work.[53] (Citation omitted)
A perusal of Dr. Sombrio's Medical Certificates dated June 27, 2012[54] and July 24, 2012[55] shows that these were issued after one (l)-time examinations, and merely reiterated Dr. Encarnacion's June 22, 2012 patch test result. The kind of test performed for the diagnosis was not described. Moreover, a comparison of Dr. Sombrio's purported signatures in the Medical Certificates dated June 27, 2012, July 24, 2012, and two (2) others, both dated December 3, 2012,[56] visibly shows significant differences in the stroke, form, and general appearance of the signatures. This puts the credibility of the Medical Certificates under a cloud.Since petitioner did not follow the prescribed procedure under the POEA Standard Employment Contract, this Court is convinced that the company-designated physician's finding that petitioner was fit to work should prevail. Hence, the Court of Appeals did not err in finding no grave abuse of discretion on the part of the National Labor Relations Commission, which affirmed the Labor Arbiter's denial of petitioner's claim for permanent and total disability benefits.

WHEREFORE, the Petition is DENIED.

SO ORDERED.

[1]Rollo, pp. 22-46. Filed under RULES OF COURT, Rule 45.

[2] Rollo, pp. 47—57. The Decision was penned by Associate Justice Ma. Luisa C. Quijano-Padilla and concurred in by Associate Justices Normandie B. Pizarro and Carmelita Salandanan-Manahan of the Special Thirteenth Division, Court of Appeals, Manila.

[3] Id. at 7-8. The Resolution was penned by Associate Justice Ma. Luisa C. Quijano-Padilla and concurred in by Associate Justices Normandie B. Pizarro and Carmelita Salandanan-Manahan of the Former Special Thirteenth Division, Court of Appeals, Manila.

[4] Id. at 56.

[5] Id. at 49-50.

[6] Id. at 47.

[7] Id. at 76. The Sinumpaang Salaysay dated February 27, 2014 states "TNKC" Kline.

[8] Id. at 48.

[9] Id. at 23.

[10] Id. at 48 and 76.

[11] Id. at 76.

[12] Id. at 48.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 73, Seaman's Medical Report dated February 22, 2012.

[18] Id.

[19] Id. at 27 and 77.

[20] Id. at 103.

[21] Id. at 77.

[22] Id. at 104.

[23] Id. at 49 and 75.

[24] Id. at 75.

[25] Id. at 82.

[26] Id. at 29.

[27] Id. at 49 and 104.

[28] Id. at 29 and 49.

[29] Id. at 49.

[30] Id. at 50.

[31] Id.

[32] Id. at 51-53.

[33] Id. at 54.

[34] Id. at 7-8.

[35] Id. at 22-46. Respondents Veritas Maritime Corp., et al. filed their Comment (rollo, pp. 101-136), to which petitioner filed his Reply (rollo, pp. 147-160).

[36] Id. at 30.

[37] Id. at 32.

[38] Philippine Overseas Employment Administration Memorandum Circular No. 010-10 (2010). Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships.

[39] Magsaysay Maritime Corp., et al. v. Verga, G.R No. 221250, October 10, 2018, [Per J. Carpio, Second Division]; Calimlim v. Wallem Maritime Services, Inc.,  G.R, No. 220629, November 23, 2016, < http://sc.judiciary.gov.pli/pdf/web/viewer.html?file=/jurisprudence/2016/november2016/220629.pdf> [Per J. Mendoza, Second Division]; INC Navigation Co. Philippines, Inc., et al. v. Rosales, 744 Phil. 774 (2014) [Per J. Brion, Second Division]; Phil. Hammonia Ship Agency, Inc., et al. v. Dumadag, 712 Phil. 507 (2013) [Per J. Brion, Second Division]; Ayungo v. Beamko Shipmanagement Corp., et al., 728 Phil. 244 (2014) [Per J. Perlas-Bernabe, Second Division]; Santiago v. Pacbasin ShipManagement, Inc., et al., 686 Phil. 255 (2012) [Per J. Mendoza, Third Division]; Andrada v. Agemar Manning Agency, Inc., et at, 698 Phil. 170 (2012) [Per J. Mendoza, Third Division]; and Masangcay v. Trans-Global Maritime Agency, Inc., et al. 590 Phil. 611 (2008) [Per J. Chico-Nazario, Third Division]; Vergara v. Hammonia Maritime Services, Inc., et al, 588 Phil. 895 (2008) [Per J. Brion, Second Division].

[40] 744 Phil. 774 (2014) [Per J. Brion, Second Division].

[41] Id. at 788-789.

[42] Magsaysay Mol Marine, Inc. v. Atraje,  G.R. No. 229192, July 23, 2018, < hrtp://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2018/july2018/229192.pd£> [Per J. Leonen, Third Division]; Sharpe Sea Personnel, Inc. v. Mabunay, Jr., Carcedo v. Maine Marine Philippines, Inc., G.R. No. 206113, November 6, 2017, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/november2017/206113 .pdf> [Per J. Leonen, Third Division]; Talaroc v. Arpaphil Shipping Corp., G.R. No. 223731, August 30, 2017, " < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/august2017/223731 .pdf> [Per J. Perlas-Bernabe, Second Division]; Carcedo v. Maine Marine Philippines, Inc., et al,, 758 Phil. 166 (2015) [Per J. Carpio, Second Division].

[43] 702 Phil. 717 (2013) [Per J. Reyes, First Division].

[44] Id. at 737-738.

[45]Rollo, p. 52.

[46] Id. at 53.

[47] Phil. Hammonia Ship Agency, Inc., et al. v. Dumadag, 712 Phil. 507 (2013) [Per J. Brion, Second Division].

[48] Hernandez v. Magsaysay Maritime Corp.,  G.R. No. 226103, January 24, 2018, [Per J. Peralta, Second Division]; Wilhelms en-Smith Bell Manning, et al. v. Suarez, 758 Phil. 540 (2015) [Per J. Brion, Second Division]; INC Navigation Co. Philippines, Inc., et al. v., Rosales, 744 Phil. 774 (2014) [Per J. Brion, Second Division].

[49] Calimlim v. Wallem Maritime Services, Inc., et al, 800 Phil. 830 (2016) [Per J. Mendoza, Second Division]; Veritas Maritime Corp., et al. v. Gepanaga, Jr., 753 Phil. 308 (2015) [Per J. Mendoza, Second Division]; Philman Marine Agency, Inc., et al. v. Cabanban, 715 Phil. 454 (2013) [Per J. Brion, Second Division]; Vergara v. Hammonia Maritime Services, Inc., et al., 588 Phil. 895 (2008) [Per J. Brion, Second Division].

[50] 781 Phil. 197 (2016) [Per J. Leonen, Second Division].

[51] Id. at 228. See also Dionio v. Trans-Global Maritime Agency, Inc., G.R. No. 217362, November 19, 2018, < http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2018/november2018/217362. pdf> [Per J. Reyes, Jr., Third Division].

[52] Rollo, p. 53.

[53] Id. at 54.

[54] Id. at 80.

[55 Id. at 79.

[56] Id. at 81-82.

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