Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 195168               November 12, 2012

BENJAMIN C. MILLAN, Petitioner, 
vs.
WALLEM MARITIME SERVICES, INC., REGINALDO A. OBEN
AND/OR WALLEM SHIPMANAGEMENT,1 LTD.,Respondents.

RESOLUTION

PERLAS-BERNABE, J.:

This is a petition for review on certiorari under Rule 45 of the

Rules of Court assailing the Decision2 dated August 20, 2010 and
Resolution3 dated January 13, 2011 of the Court of Appeals (CA)
in CA-G.R. SP No. 104924 which decreed petitioner Benjamin C.
Millan entitled only to partial disability benefits in the sum of
US$7,465.00 plus ten percent (10%) thereof as attorney's fees, or
its peso equivalent at the time of payment.

The facts are undisputed.

Petitioner Benjamin C. Millan has been under the employ of

Wallem Maritime Services, Inc. as a seafarer since May 1981.4 On
October 19, 2002, he was deployed by the latter for its foreign
principal, Wallem Shipmanagement, Ltd., as a messman with a
basic salary of US$405.00 a month on board M/T "Front
Vanadis."5 On February 13, 2003, he slipped while carrying the
ship’s provisions and injured his left arm. He was examined at St.
Paul’s Surgical Clinic in Yosu City, South Korea where he was
diagnosed to have suffered "fracture on left ulnar shaft."6 Hence,
he was medically repatriated on February 26, 2003.7 On February
28, 2003, he proceeded to the Manila Doctor’s Hospital where he
consulted Dr. Ramon S. Estrada, the company-designated
physician, and underwent an operation on March 3, 2003.8 After
his discharge, he went through a series of consultations and
physical therapy sessions from May 6, 2003 until July 2,
2003.9 On July 5, 2003, Dr. Estrada reported that petitioner had
completed his physical therapy program but will have to undergo
a physical capacity test on August 28, 200310 to evaluate his
fitness to work.11 Instead, on August 29, 2003, petitioner filed a
complaint12 against respondents Wallem Maritime Services, Inc.,
its President/Manager Reginaldo A. Oben, and Wallem
Shipmanagement, Ltd. for medical reimbursement, sickness
allowance, permanent disability benefits, compensatory damages,
exemplary damages and attorney’s fees.

On September 1, 2003, petitioner consulted Dr. Rimando C.

Saguin, an orthopedic surgeon, who diagnosed him as suffering
from Philippine Overseas Employment Administration (POEA)
Disability Grade 11 and elbow bursitis which rendered him "unfit
to work at the moment."13 On

September 10, 2003, petitioner sought the opinion of Dr. Nicanor

F. Escutin who assessed his condition as a partial permanent
disability with POEA Disability Grade 10, 20.15%. Dr. Escutin also
opined that petitioner was suffering from "loss of grasping power
of small objects in one hand, and inability to turn forearm to
pronation or supination. The period of healing remains
undetermined. The patient is now unfit to go back to work at sea
at whatever capacity."14

In their defense, respondents denied any liability contending that

proper treatment and management were afforded petitioner but
he deliberately ignored his medical program by failing to appear
on his scheduled appointment with the company-designated
physician. Respondents also claim that petitioner was paid his
sickness allowance in full, and his medical examinations, tests
and check-ups were shouldered by the company.15

The Labor Arbiter's Ruling

In the Decision16 dated September 27, 2006, the Labor Arbiter

held that since the company-designated physician failed to make
any pronouncement on petitioner’s fitness to resume sea service
within 120 days as required by law, his disability is deemed
permanent and total. Consequently, respondents Wallem
Maritime Services, Inc. and Wallem Shipmanagement, Ltd. were
found jointly and severally liable to pay petitioner US$60,000.00
or its peso equivalent representing his permanent and total
disability compensation plus ten percent (10%) thereof or
US$6,000.00 as attorney’s fees. Petitioner’s claim for medical
reimbursement and sickness allowance, however, were denied for
lack of merit.

The NLRC Ruling

On appeal, the National Labor Relations Commission (NLRC)

reversed and set aside the findings of the Labor Arbiter, ruling
that the assessments made with respect to the degree of
petitioner’s disability by the two independent doctors who
examined him only once cannot prevail over the extensive
medical examinations conducted by the company-designated
physician, Dr. Estrada. It pointed out that under the POEA
Standard Employment Contract, the post-employment medical
examination and degree of disability must be performed and
declared by the company-designated physician.17

Aggrieved, petitioner filed a petition for certiorari under Rule 65 of

the Rules of Court before the CA.

The CA Ruling
In its assailed Decision18 dated August 20, 2010, the CA set aside
the NLRC’s conclusions and rendered a new judgment finding
petitioner as suffering from partial permanent disability Grade 10.
It held that while petitioner’s disability has exceeded 120 days,
there was no showing that his "earning power was wholly
destroyed and he is still capable of performing remunerative
employment."19 Thus, it ordered respondent manning agency and
its principal liable to pay petitioner US$7,465.00 plus 10% thereof
as attorney’s fees by way of partial disability benefits.

Hence, the instant petition20 based on the sole issue of whether or

not the CA committed reversible error in granting petitioner only
partial permanent disability Grade 10 despite his inability to work
for more than 120 days.

In their Comment,21 respondents averred that the determination

made by the CA on the degree of petitioner’s disability was in
accordance with the Schedule of Disability Allowances under
Section 32 of the POEA-Standard Employment Contract (POEA-
SEC), hence, should be upheld.

The Court’s ruling

There is no merit in this petition.

A seafarer’s inability to resume his work after the lapse of more

than 120 days from the time he suffered an injury and/or illness is
not a magic wand that automatically warrants the grant of total
and permanent disability benefits in his favor.

In Vergara v. Hammonia Maritime Services, Inc.,22 the Court

elucidated on the seeming conflict between Paragraph 3, Section
20(B)23 of the POEA-SEC (Department Order No. 004-00) and
Article 192 (c)(1)24 of the Labor Code in relation to Section 2(a),
Rule X25 of the Amended Rules on Employees Compensation,
thus:
As these provisions operate, the seafarer, upon sign-off from his
vessel, must report to the company-designated physician within
three (3) days from arrival for diagnosis and treatment. For the
duration of the treatment but in no case to exceed 120 days, the
seaman is on temporary total disability as he is totally unable to
work. He receives his basic wage during this period until he is
declared fit to work or his temporary disability is acknowledged by
the company to be permanent, either partially or totally, as his
condition is defined under the POEA Standard Employment
Contract and by applicable Philippine laws. If the 120 days initial
period is exceeded and no such declaration is made because the
seafarer requires further medical attention, then the temporary
total disability period may be extended up to a maximum of 240
days, subject to the right of the employer to declare within this
period that a permanent partial or total disability already exists.
The seaman may of course also be declared fit to work at any
time such declaration is justified by his medical condition. (Italics
in the original)

Applying Vergara, the Court in the recent case of C.F. Sharp

Crew Management, Inc. v. Taok26 enumerated the following
instances when a seafarer may be allowed to pursue an action for
total and permanent disability benefits, to wit:

(a) The company-designated physician failed to issue a

declaration as to his fitness to engage in sea duty or
disability even after the lapse of the 120-day period and
there is no indication that further medical treatment would
address his temporary total disability, hence, justify an
extension of the period to 240 days;

(b) 240 days had lapsed without any certification issued by

the company-designated physician;

(c) The company-designated physician declared that he is fit

for sea duty within the 120-day or 240-day period, as the
 case may be, but his physician of choice and the doctor
chosen under Section 20-B(3) of the POEA-SEC are of a
contrary opinion;

(d) The company-designated physician acknowledged that

he is partially permanently disabled but other doctors who he
consulted, on his own and jointly with his employer, believed
that his disability is not only permanent but total as well;

(e) The company-designated physician recognized that he is

totally and permanently disabled but there is a dispute on the
disability grading;

(f) The company-designated physician determined that his

medical condition is not compensable or work-related under
the POEA-SEC but his doctor-of-choice and the third doctor
selected under Section 20-B(3) of the POEA-SEC found
otherwise and declared him unfit to work;

(g) The company-designated physician declared him totally

and permanently disabled but the employer refuses to pay
him the corresponding benefits; and

(h) The company-designated physician declared him partially

and permanently disabled within the 120-day or 240-day
period but he remains incapacitated to perform his usual sea
duties after the lapse of said periods.

None of the foregoing circumstances is extant in this case.

Records show that from the time petitioner was repatriated on

February 26, 2003, 129 days had lapsed when he last consulted
with the company-designated physician on July 5, 2003 and 181
days had passed on the day he last visited his physiatrist on
August 26, 2003.27 Concededly, said periods have already
exceeded the 120-day period under Section 20(B) of the POEA-
SEC and Article 192 of the Labor Code. However, it cannot be
denied that the company-designated physician had
determined28 as early as March 5, 2003 or even before his
discharge from the hospital that petitioner’s condition required
further medical treatment in the form of physical therapy sessions,
which he had subsequently completed per Dr. Estrada’s Memo
dated July 5, 2003,29 thus, justifying the extension of the 120-day
period. The company-designated physician therefore had a period
of 240 days from the time that petitioner suffered his injury or until
October 24, 2003 within which to make a finding on his fitness for
further sea duties or degree of disability.1âwphi1

Consequently, despite the lapse of the 120-day period, petitioner

was still considered to be under a state of temporary total
disability at the time he filed his complaint on August 29, 2003,
184 days from the date of his medical repatriation which is well-
within the 240-day applicable period in this case. Hence, he
cannot be said to have acquired a cause of action for total and
permanent disability benefits.30 To stress, 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 fails
to make such declaration.31

Besides, petitioner's own evidence shows that he is suffering only

from partial permanent disability of either Grade 10 or
11.32 Accordingly, in the absence of proof to the contrary/~ the
Court concurs with the CA 's finding that petitioner suffers from a
partial permanent disability grade of 10.

WHEREFORE, premises considered, the instant petition is

DENIED. The Decision dated August 20, 2010 and Resolution
dated January 13, 20 II of the Court of Appeals in CA-G.R. SP
No. 104924 are AFFIRMED.

SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL
ARTURO D. BRION
CASTILLO
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION

I attest that the conclusions in the above Resolution had been

reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VI II of the Constitution, and the

Division Chairperson's Attestation, I certify that the conclusions in
the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court's
Division.

MARIA LOURDES P. A. SERENO

Chief Justice