G.R. No. 191853, January 27, 2014

THIRD DIVISION [ G.R. No. 191853, January 27, 2014 ] ROGELYN S. MALINAO V. HEAVYLIFT MANILA, ET AL.

Respondent Heavylift Manila (Heavylift), acting on behalf of its foreign principal respondent Heavylift Manila (HK) Ltd., hired petitioner Rogelyn S. Malinao for work as wiper on board the vessel M.V. Svenja for 10 months at US$300.00 per month.[1] Before his deployment, Malinao underwent a pre-employment medical examination that found him fit to work. In the latter part of February 2004, Malinao left for Lisbon, Portugal, to join his vessel.[2]

In the early part of March 2004, while he was lifting two 20-kilo batteries from the engine level to the deck, petitioner Malinao suddenly felt his back snap and he lost strength. He was referred to a shoreline physician at Lisbon, Portugal, who prescribed pain relievers. Despite this, however, his back pains continued to recur. He was thus further examined by a doctor in Livorino, Italy, and another in Huelva, Spain.[3]

The Italian doctor said in his medical report that petitioner Malinao's x-ray showed no sign of fracture but advised his repatriation for further examination as he had not been fit for duty. Thus, he disembarked from the vessel and returned to the Philippines on April 21, 2004.[4]

On his arrival, respondent Heavylift endorsed petitioner Malinao to Dr. Gerardo Wenceslao, the company-designated physician at the Sagrada Corazon Medical Center. He was diagnosed as suffering from Lumbar Disc Herniation and, as a consequence, was referred to an orthopedic surgeon for further evaluation. The orthopedic surgeon later confirmed Dr. Wenceslao's finding and advised Malinao to undergo intensive physical therapy sessions.[5]

On June 9, 2004 or after completing his physical therapy, petitioner Malinao's attending physician observed that his back pain had healed completely and that there was significant improvement on the flexibility of his back and hamstring muscle. To prevent recurrence of his back pains, however, the physician advised him to do some home exercises. As such, he was declared fit to work.[6]

Two years later or on July 3, 2006 Malinao consulted with Dr. Venancio Garduce, an independent orthopedic surgeon, who found weakness and numbness in Malinao's L5 root distribution consistent with herniated disc on L5-S. The Magnetic Resonance Imaging (MRI) done on him showed that he was fully disabled with a grade 1 disability score.[7] Thus, on November 2, 2006 he filed a complaint in National Labor Relations Commission (NLRC) NCR OFW Case 06-11-03341-00 for disability benefits, sick pay allowance, damages and attorney's fees.[8]On August 31, 2007 the Labor Arbiter (LA) rendered a Decision[9] awarding petitioner Malinao permanent total disability benefits of US$125,000 and attorney's fees. The LA doubted the company-designated physician's finding that Malinao was fit to work since the latter complained of lumbar pains just two weeks earlier. With disc herniation, he could not continue the kind of work he did without exacerbating his physical condition.[10]

On November 27, 2008, however, the NLRC reversed and set aside the LA's Decision.[11] It gave more weight to the company-designated physician's findings since Malinao neither questioned the same nor challenged the physician's competency. The NLRC added that if Malinao was indeed still suffering from pain after he was declared fit to work, he should have immediately sought the opinion of his personal doctor. Instead, he waited two years before complaining about it.

Of course Malinao claimed that he continued to seek medical attention afterwards but he presented no evidence to substantiate this assertion. Furthermore, although his personal doctor's certification came two years after he had been declared fit to work, that certification failed to mention the cause of Malinao's current disability.[12] The NLRC denied Malinao's motion for reconsideration on January 29, 2009.[13]

Petitioner Malinao appealed to the Court of Appeals (CA) in CA-G.R. SP 108279 but the latter court rendered a Decision[14] on October 27, 2009, dismissing his petition for the reason that the NLRC committed no grave abuse of discretion in deciding against him. He filed a motion for reconsideration but the CA denied the same,[15] hence, the present petition.

Petitioner Malinao claims that Dr. Wenceslao's finding that he was fit to work is questionable since Malinao declared two weeks before that he was still experiencing back pains. Malinao further claims that Dr. Garduce's evaluation should be given more weight since he was an orthopedic specialist; whereas, Dr. Wenceslao was actually a cancer specialist.[16]

But the POEA Standard Employment Contract recognizes only the disability grading or declaration of fitness to work of seafarers provided by the company-designated physician.[17] Here that declaration was not arrived at capriciously. It came after Malinao underwent medical examinations and completed his therapy sessions. The Court cannot just brush aside Dr. Wenceslao's findings just because Malinao's doctor of choice made a contrary finding. Malinao did not then question the credentials of Dr. Wenceslao. He waited two years before he raised his objection. While this Court recognizes the right of the seafarer to question the assessment of the company doctor, he must exercise his right within a reasonable time.

Besides, after he diagnosed Malinao as suffering from Lumbar Disc Herniation, Dr. Wenceslao referred the case to an orthopedic surgeon for further evaluation. The orthopedic surgeon later confirmed Dr. Wenceslao's finding and advised Malinao to undergo intensive physical therapy sessions.[18] The finding was reinforced by the expert opinion of an orthopaedic surgeon.

In Cadornigara v. National Labor Relations Commission,[19] the Court gave no evidentiary value to the assessment of the seafarer's own doctor six months after he was declared fit to work on the ground that his health condition may have drastically changed in the interregnum.[20] In Sarcocam v. Interorient Maritime Ent., Inc.,[21] the Court likewise rejected the medical report complainant procured from a private physician seven or eight months . after he was declared fit to work.[22] If the Court does not give credence to the claimants' private doctors less than one year from the time they were declared fit to work, then there is more reason for the Court to reject the assessment that Malinao's doctor made two years after. If it were true that his back pains persisted after having completed many sessions of physical therapy,[23] then Malinao should have immediately consulted another doctor, especially with his allegation that Heavylift's doctors stopped giving him treatment despite his condition and fraudulently declared him fit to work.[24]

Viewed from the perspective that the company-designated physician's certification should be given credence for the reasons just stated, coupled with the fact that the fit to work certification was issued well within the 120-day treatment or the temporary total disability period from the date Malinao was discharged from his vessel assignment, the CA was correct in refusing to recognize that he had suffered from any disability, whether permanent or temporary.[25]

WHEREFORE, the Court DENIES the petition and AFFIRMS the Court of Appeals Decision dated October 27, 2009 and Resolution dated January 28, 2010 in CA-G.R. SP 108279. (Peralta, J., no part; Perez, J., Additional Member, per Raffle dated June 16, 2010.)

SO ORDERED.

[1] CA rollo, p. 25.[2] Rollo, p. 15.

[3] CA rollo, pp. 25-26.

[4] Id. at 43, 68.

[5] Id. at 68-70.

[6] Id. at 70.

[7] Id. at 43.

[8] Id. at 24.

[9] Id. at 25-31.

[10] Id. at 28-30.

[11] Id. at 32-38.

[12] Id. at 35-36.

[13] Id. at 39-40.

[14] Penned by Associate Justice Ramon R. Garcia and concurred in by Associate Justices Portia AliƱo-Hormachuelos and Fernanda Lampas Peralta; rollo, pp. 53-67.

[15] Id. at 41-42.

[16] Id. at 20, 23-24.

[17] Andrada v. Agemar Manning Agency, Inc., G.R. No. 194758, October 24, 2012, 684 SCRA 587, 597- 598.

[18] CA rollo, pp. 68-70.

[19] 563 Phil. 671 (2007).

[20] Maunlad Transport, Inc. and/or Nippon Merchant Marine Company, Ltd., Inc. v. Manigo, Jr., 511 Phil. 319, 330 (2008), citing Cadornigara v. National Labor Relations Commission, id. at 682.

[21] 526 Phil. 448 (2006).

[22] Id. at 457.

[23] Rollo, p. 16.

[24] Id.

[25] Andrada v. Agemar Manning Agency, Inc., supra note 17, at 602.

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