WALLEM MARITIME SERVICES, INC. v. ERNESTO C. TANAWAN

G.R. No: 160444Petitioner/s: Wallem Maritime Services, IncRespondent/s: Ernesto C. TanawanPonente: J. BersaminAction: Petition for review on certiorariDate: August 29, 2012

FACTS1. Wallem Maritime Services Inc, then acting as local agent of Scandic Ship Management, Ltd., engaged Ernesto Tanawan as a dozer driver assigned to the vessel (M/V Eastern Falcon) for a year.

2. While he was assisting 2 co-workers in lifting a steel plate aboard the vessel, a corner of the steel plate touched the floor of the deck, causing the sling to slide and the steel plate to hit his left foot. His xray examination showed he suffered multiple left toes fracture (i.e., left 2nd proximal phalanx and 3rd to 5th metatarsal). Following his repatriation, company-designated physician Dr. Robert D. Lim conducted the evaluation and treatment of his foot injury at Metropolitan Hospital. He was referred to the hospitals orthopedic surgeon who advised him to continue with this immobilization to allow healing. After removing his cast, he was advised to start motion exercises and partial weight bearing. He underwent physical therapy for 2 months at the St. Camillus Hospital. He also underwent bone grafting as advised by the orthopedic surgeon. Dr. Lim, conforming with the orthopedic surgeons findings, reported that Tanawan was already asymptomatic and pronounced him fit to work. From Nov 30, 1997 to April 1998, Tanawan was paid sickness allowances equivalent to his monthly salary. (172 days unfit to work) On March 1998, while still under treatment by Dr. Lim, Tanawan sought services of Dr. Rimando Saguin to assess the extent of his disability and the latter categorized the foot injury as Grade 12 based on the POEA Schedule of Disability.3. On August 1998, Tanawan also went to Dr. Hernando Bunuan for disability evaluation, not of his foot injury but of an eye injury he had supposedly sustained while on board the vessel. Some thinner accidentally splashed into his right eye while spray-painting the loader of the vessel. He was rushed to the Office of the Chief Mate for emergency treatment and the ship doctor examined him 5 days later but found that there was nothing to worry about.4. Dr. Bunuan referred him to Dr. Tim Jimenez who diagnosed him to be suffering from a retinal detachment with vitreous hemorrhage on the right eye for which surgical repair was needed. Dr. Bunuan categorized his disability as Grade 7.5. [ARBITRATION BRANCH of NLRC] Tanawan filed a complaint for disability benefits for the foot and eye injuries, sickness allowance, damages and attorneys fees against Wallem Maritime and Scandic Ship Management. NLRC denied this claim averring that he was already declared fit for work by Dr. Lims certification and that he did not sustain the eye injury while on board because it was not reported. Also, his claim for sickness allowance was already paid when he underwent treatment.6. [LABOR ARBITER] ruled in Tanawans favor: LA found sufficient evidence to support Tanawans claim for disability benefits for the foot and eye injuries (according to Dr. Saguins classification of foot injury as Grade 12 and Dr. Bunuans classification of eye injury as Grade 7). Dr. Lims certification that Tanawan was fit to work was hearsay evidence because he had no personal knowledge of the facts, but it has been the orthopedic surgeon who made the finding. Wallem Maritime and Scandic Ship to pay Tanawan US$5,225 (for foot injury) and US$20,900 (eye injury), plus attorneys fees equivalent to 10% of the total monetary awards.7. [NLRC] reversed LAs decision Dr. Saguins certification was issued while Tanawan was still under Dr. Lims treatment, and that Dr. Saguins disability grading had no factual or legal basis. During that time, Dr. Lim already declared Tanawan as fit for work. Tanawan failed to discharge his burden of proof to establish that he had sustained the injury while on board the vessel. He did not submit himself to a post-employment medical exam for the eye injury. It was a mere afterthought. Certification of Dr. Bunuan on the eye injury did not state the cause. No evidence that thinner directly caused it. Contrary opinion of a certain Dr. Willie Angbue-Te attested that the splashing of a thinner would not lead to his alleged eye complication.8. [CA] ruled in favor of Tanawan What was being compensated in disability compensation was not the injury but the incapacity to work Considering that the foot injury incapacitated Tanawan from working, he should be given disability benefits. Dr. Lims certification had no probative weight because it was self-serving and biased in favor of petitioner (since he was the company-designated physician) Claim for eye injury was warranted because it occured during the term of the employment contract, and that an injury need not be work-connected to be compensable.

ISSUE 1Whether or not the standard employment contract of POEA is the law between Tanawan and Wallem Maritime? YES

HELD 11. Employment of seafarers, and its incidents, are governed by the contracts they sign every time they are hired or rehired. While the seafarers and their employers are governed by their mutual agreements, the POEA rules and regulations require that the POEA SEC, which contains the standard terms and conditions of the seafarers employment in foreign ocean-going vessels, be integrated in every seafarers contract.

ISSUE 2Whether or not a company-designated physician possesses the legal authority to declare a seaman fit or disabled under the law? -- YES

HELD 21. 1996 POEA SEC Sec 20(b) on Compensation and Benefits provides that the one tasked to determine whether the seafarer suffers from any disability or is fit for work is the company-designated physician. The seafarer must submit himself for post-employment medical examination within 3 days from his repatriation. However, this assessment is not final, binding or conclusive on the seafarer, labor tribunals, or the courts. He may request for a second opinion and the medical report issued by the physician of his choice shall also be evaluated on its merit. As applied in this case, Tanawan submitted himself to Dr. Lim, the company-designated physician, for medical exam within the 3-day reglementary period. This medical exam was focused on the foot injury, not on the alleged eye injury, when Dr. Lim declared him fit for work. Tanawan consulted Dr. Saguin for the evaluation of the degree of his disability. At that time, he was due to undergo bone grafting as Dr. Lim recommended. Therefore, Dr. Saguins finding that Tanawan had Grade 12 disability was explicable and plausible.

ISSUE 3Whether or not a seaman can claim disability benefits after he failed to report his alleged injury within the 3-day reglementary period as required by law? -- NO

HELD 31. Tanawans claim for disability benefits due to the eye injury was already barred by his failure to report the injury and to have his eye examined by a company-designated physician. 2. Rationale for this rule is that reporting the injury within 3 days from repatriation fairly makes it easier for a physician to determine cause of injury. Ascertaining real cause of injury beyond 3 days may prove difficult.3. To ignore this rule might set a precedent to negative repercussions (like opening floodgates to a limitless number of disability benefits claims) or causing unfairness to employer who would have difficulty in determining the cause of claimants illness because of the passage of time.4. Under 1996 POEA SEC, it was enough to show that the injury was sustained during term of contract. However, Tanawan did not report the eye injury to Dr. Lim while he was undergoing treatment for foot injury. He also had his eye checked after almost 9 months from his repatriation. Tanawan did not present any proof of having sustained the eye injury during the term of his contract. He also did not present evidence that the thinner cause the eye injury. Certification of Dr. Bunuan did not indicate cause of eyes injury.

DISPOClaim for disability benefit for the eye injury is denied in view of Tanawans (1) non-reporting of the injury to the petitioner and (2) of his failure to prove that the injury was sustained during the term of his employment.CourtPARTIALLY GRANTSthe petition. DELETESthe award of US$20,900.00 as disability benefits for the eye injury.

NOTES:1996 POEA SEC, Section 20(B): COMPENSATION AND BENEFITSx x xB. COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS:The liabilities of the employer when the seafarer suffers injury or illness during the term of his contract are as follows:1. The employer shall continue to pay the seafarer his wages during the time he is on board the vessel;2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to be repatriated.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. Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance equivalent to his basic wage until he is declared fit to work or the degree of permanent disability has been assessed by the company-designated physician, but in no case shall this period exceed one hundred twenty (120) days.For this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits.

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