KESTREL SHIPPING CO., INC./ CAPT. AMADOR P. SERVILLON and ATLANTIC MANNING LTD., Petitioners, vs. FRANCISCO D.

MUNAR, Respondent. DECISION REYES, J.: This is a petition for review on certiorari assailing the Decision 1 dated an!ar" #$, #%11 and Resol!tion# dated Septe&'er (, #%11 of the Co!rt of )ppeals *C)+ in C), -.R. SP No. 11%$.$. The facts leading to the filing of this petition are !ndisp!ted. On /arch #0, #%%(, petitioner 1estrel Shipping, Inc. *1estrel+, on 'ehalf of its principal, petitioner )tlantic /anning, 2td., and respondent 3rancisco /!nar */!nar+ forged a si4 *(+,&onth e&plo"&ent contract designating /!nar as p!&p &an for /56 So!thern 7nit". )s p!&p &an, his d!ties incl!de8 *a+ operating, &aintaining and repairing power,driven p!&ps, valves and related &achiner"9 *'+ transferring &aterials to and fro& vessels and ter&inal storages9 *c+ transferring li:!ids '" siphoning9 *d+ installing hoses and pipes 'etween p!&ps and containers that re:!ire filling or e&pt"ing9 *e+ &aintenance of p!&p roo&s and si&ilar spaces9 *f+ assisting in the cleaning of tan;s, cr!de oil washing, gas inerting, p!rging of tan;s and wage sa&pling of cargo9 *g+ chec;ing and recording cargo te&perat!re9 and *h+ operating tan; heating e:!ip&ent.0 On Octo'er 1#, #%%(, after /!nar assisted in &an!all" lifting the ship<s anchor windlass &otor that weighs a'o!t 0=% ;ilogra&s, he started to li&p and e4perience severe pain in his l!&'ar region. On Octo'er 1$, #%%(, /!nar was ad&itted at the Enta'eni >ospital in D!r'an, So!th )frica. )ccording to his attending ph"sician, Dr. So&a T. -ovender *Dr. -ovender+, the 4,ra" and &agnetic resonant i&age */RI+ of /!nar<s l!&'ar spine showed degenerative changes, which re:!ired hi& to ta;e pain &edication, !se pelvic traction, and !ndergo ph"siotherap". In his &edical report? dated Octo'er 1@, #%%(, Dr. -ovender stated that8 I arranged for hi& to have l!&'ar spine 4,ra"s and this showed that he had degenerative changes especiall" of the lower l!&'ar spine in the 205? and 2=5S1 region with degenerative changes noted 'ilaterall". I proceeded to do a /RI of the l!&'ar spine to e4cl!de an ac!te prolapsed disc and this confir&ed degenerative changes of the l!&'ar spine e4tending fro& the 2#50 region and 205? and the worst affected levels appeared to 'e 2?5= and 2=5S1. 4444 I have ad&itted hi& for a co!rse on intensive conservative &anage&ent in hospital. >e has 'een co&&enced on pelvic traction and 'een given pain &edication, which incl!des Narcotic analgesia, &!scle rela4ants, and anti,infla&&atories. I have also co&&enced hi& on a co!rse of ph"siotherap" and hopef!ll" with this conservative &ode of treat&ent he sho!ld show s!fficient i&prove&ent to o'viate an" spinal s!rger".=

On Octo'er #?, #%%(, Dr. -ovender iss!ed another &edical report ( where he stated that while /!nar<s i&proved condition allowed hi& to travel, he wo!ld re:!ire assistance in carr"ing his things and sho!ld 'e l"ing down for the entire d!ration of the trip. /!nar sho!ld !ndergo f!rther treat&ent and &anage&ent in a spine reha'ilitation facilit" '!t if he wo!ld not register a positive response thereto, he &!st !ndergo s!rger". Specificall"8 /r. /!nar is c!rrentl" recovered fro& the ac!te pain s"ndro&e that he first presented with. )ltho!gh he has not rec!perated co&pletel" he has progressed to the state were he will 'e a'le to travel 'ac; to the Phillipines *sic+ with assistance. >e will re:!ire assistance with regard to his 'aggage transfers and he sho!ld also 'e acco&&odated on the aircraft so that he can lie down, as this wo!ld &ini&iAe the a&o!nt of press!re on his l!&'ar inter,verte'ral disc and &ini&iAe the nerve root co&pression. It is reasona'le to ass!&e that the heav" lifting that for&s part of his dail" wor; d!ties has contri'!ted significantl" to the a'nor&alities de&onstrated on his l!&'ar spine /RI scans. 4 4 4. /r. /!nar will re:!ire f!rther treat&ent and &anage&ent in the Philippines. I wo!ld reco&&end a f!rther co!rse of conservative treat&ent for a few &ore wee;s. If this does not settle he &a" then re:!ire s!rgical intervention with deco&pression of the areas of stenosis *narrowing+ and re&oval of the disc frag&ents that are co&pressing the nerve roots and a possi'le f!sion of his lower 'ac;. >owever, this will depend on the response to the conservative treat&ent and his recover" after s!ch s!rger" &a" ta;e !p to 0 &onths. . Dr. -ovender also declared /!nar !nfit to perfor& his !s!al sea d!ties8 Bhether he has f!rther s!rger" or not, it will not 'e possi'le for /r. /!nar to contin!e perfor&ing the Cheav" &an!al d!tiesC that hisDo' re:!ires an" longer, as this co!ld e4acer'ate his l!&'ar spine pro'le&. 3ro& this perspective he is &edicall" !nfit to contin!e s!ch d!ties. 4 4 4 $ On Octo'er #$, #%%(, /!nar was repatriated. On Octo'er 0%, #%%(, /!nar was ad&itted at the Chinese -eneral >ospital. 3or two *#+ wee;s, he !nderwent intensive ph"siotherap" and was attended to '" the following doctors8 Dr. Tiong Sa& 2i& *Dr. 2i&+, a spine s!rgeon9 Dr. )ntonio Peri:!et *Dr. Peri:!et+, a specialist on ph"sical reha'ilitation &edicine9 and Dr. 3idel Ch!a *Dr. Ch!a+ of Trans -lo'al >ealth S"ste&s, Inc. to who& 1estrel referred his case for eval!ation.@ On Nove&'er 1., #%%(, Dr. Ch!a iss!ed a &edical report, 1% stating that /!nar did not respond positivel" to the treat&ent and reco&&ending that he !ndergo la&inecto&" and dissecto&", proced!res which wo!ld entail a recover" period fro& fo!r *?+ to si4 *(+ &onths8 The a'ove patient had # wee;s intensitive *sic+ ph"siotherap" '!t no i&prove&ent. I had conference with Dr. Tiong Sa& 2i& *spinal s!rgeon+ and Dr. )ntonio Peri:!et *reha'ilitation &edicine+ and strongl" s!ggest patient to !ndergo 2a&inecto&" E

dissecto&" which will appro4i&atel" cost P>P 1#%,%%%.%% to P>P 1=%,%%%.%% 'arring co&plication. Rec!peration will ta;e ?,( &onths fro& date of operation. 11 On Dece&'er #, #%%(, /!nar had s!rgical intervention. On Dece&'er #%, #%%(, he was discharged fro& the hospital. In his &edical report1# of even date, Dr. Ch!a diagnosed /!nar as s!ffering fro& herniated disc and that while the s!rger" was s!ccessf!l, /!nar sho!ld contin!e ph"siotherap"8 The a'ove patient discharged toda" fro& Chinese -eneral >ospital. >e !nderwent 2a&inecto&" and Dissecto&" last Dece&'er #, #%%(. Since he is fro& 2a 7nion, he &a" contin!e his ph"siotherap" in his ho&etown. )t present, the prognosis is good and rec!peration will ta;e ?,( &onths fro& date of operation.10 /!nar contin!ed his ph"siotherap" sessions at 2or&a /edical Center at Carlatan, San 3ernando Cit", 2a 7nion.1? On 3e'r!ar" #., #%%., /!nar was ph"sicall" e4a&ined '" Dr. 2i& and Dr. Peri:!et. The following o'servations were noted in the &edical report Dr. Ch!a iss!ed8 Patient was re,eval!ated '" Dr. Tiong Sa& 2i& with finding of right lower e4tre&ities has i&proved '!t there is still pain on straight leg raise of left and wea; e4tensor hallis longes. >e was also eval!ated '" Dr. )ntonio Peri:!et with following finding 1. there is a decrease in pain #. tenderness F l!&'ar paraverte'ral 0. wea;ness left lower e4tre&it" ?. decrease in sensation fro& T 1% down =. S2R F 0%o left9 f!ll F right (. decrease an;le Der; left .. pain on all tr!n; &otion1= On )pril 11 and 1#, #%%., /!nar was once again e4a&ined '" Dr. Peri:!et and Dr. 2i&, respectivel". On /a" 0, #%%., Dr. Ch!a iss!ed a &edical report 1( where he en!&erated the findings of Dr. Peri:!et and Dr. 2i& and rated /!nar<s i&pedi&ent as -rade $.

The a'ove patient was re,eval!ated '" Dr. )ntonio Peri:!et on )pril 11, #%%. with report of pain level is =51% , S2R,?=o 'ilateral, wea;ness left foot &!scle, decrease sensation 'elow &id, thigh , Tenderness,l!&'o sacral process and left l!&'ar area , Pain on side 'ending and forward fle4ion >e is advised to contin!e ph"siotherap". >e was also seen '" Dr. Tiong Sa& 2i& on )pril 1#, #%%. and advised to contin!e ph"siotherap" and reco&&ended disa'ilit" assess&ent. )fter thoro!gh eval!ation, the report of Dr. )ntonio Peri:!et9 Dr. Tiong Sa& 2i& and Dr. Edward 2inga"o, patient will ta;e a long ti&e to f!ll" recovered. Therefore, he &a" 'e given disa'ilit". Gased on )&ended POE) Contract Section 0#,C>EST,TR7N1,SPINE H =,disa'ilit" grade $.1. /eanti&e, on )pril 1., #%%., /!nar filed a co&plaint for total and per&anent disa'ilit" 'enefits. >is co&plaint was doc;eted as N2RC,NCR Case No. O3B,%.,%?, %%@.%,%% and raffled to 2a'or )r'iter 6eneranda -!errero *2) -!errero+. /!nar clai&ed that the &ere fact that his &edical condition, which incapacitated hi& to engage in an" gainf!l e&plo"&ent, persisted for &ore than 1#% da"s a!to&aticall" entitles hi& to total and per&anent disa'ilit" 'enefits. D!ring the &andator" &ediation and conciliation conferences, petitioners invo;ed Dr. Ch!a<s assess&ent per his &edical report dated /a" 0, #%%. and offered to pa" /!nar the 'enefit corresponding to -rade $ disa'ilities or I1(,.@=.%%. /!nar reDected petitioners< offer and &aintained that his disa'ilit" sho!ld 'e rated as -rade 1. /!nar relied on the following assess&ent &ade '" Dr. Edward 2. Chi! *Dr. Chi!+, an orthopedic s!rgeon at 2or&a /edical Center, in a &edical certificate 1$ the latter iss!ed on /a" #1, #%%.8 )t present, he co!ld tolerate wal;ing for short distances d!e to his low 'ac; pain. There is wea;ness of his left foot. D!e to his 'ac; inD!r" and pain, he co!ld not go 'ac; to wor;. >e co!ld not tolerate strenJ!Ko!s ph"sical activities.1@ In a Decision#% dated /a" 0%, #%%$, 2) -!errero awarded /!nar with total and per&anent disa'ilit" 'enefits in the a&o!nt of 7SI(%,%%%.%% and attorne"<s fees e:!ivalent to ten percent *1%L+ of the for&er. )s 'etween the assess&ent of Dr. Ch!a and that of Dr. Chi!, 2) -!errero gave &ore weight to the latter8

)ssessing the parties< respective aver&ents and doc!&ents add!ced in s!pport thereof, this Office finds that the co&plainant is entitled to the &a4i&!& co&pensation 'enefit as provided !nder the POE) Standard E&plo"&ent Contract in the a&o!nt of 7SI(%,%%%.%%. The &edical certificate iss!ed '" Dr. Edward 2. Chi! dated /a" #1, #%%. categoricall" states that co&plainant cannot go 'ac; to wor; d!e to his 'ac; inD!r" and that he cannot tolerate stren!o!s ph"sical activities. -iven the nat!re of his ship'oard e&plo"&ent, it is logical to concl!de that the co&plainant cannot res!&e ship'oard e&plo"&ent. This concl!sion is 'orne o!t '" the respondents< own &edical certificate showing that after the co&plainant !nderwent s!rger" in Dece&'er, #%%( he was e4pected to rec!perate for a period of ?,( &onths, and on /a" 0, #%%. the respondents< designated ph"sician deter&ined that the co&plainant Cwill ta;e a long ti&e to f!ll" recovered *sic+C. )nd, while he was assessed with I&pedi&ent -rade $, the assess&ent is not acco&panied '" an" D!stification, other than the vag!e :!alification on the length of ti&e of recover". Evidentl", s!ch a&'ig!o!s assess&ent, vis,M,vis that &ade '" the co&plainant<s independent ph"sician who had ta;en over the co&plainant<s therap", cannot 'e a 'asis for the grant of the assessed disa'ilit" grading. The deter&ination of the co&pan" designated ph"sician cannot prevail over the specific assess&ent &ade '" the independent ph"sician. 6eril" the illness s!stained '" the co&plainant has rendered hi& !nfit to contin!e his e&plo"&ent as seafarer. )ccordingl", he is entitled to the &a4i&!& co&pensation 'enefit of 7SI(%,%%%.%%. It is well,settled that8 Cdisa'ilit" sho!ld not 'e !nderstood &ore on its &edical significance '!t on the loss of earning capacit". Per&anent total disa'ilit" &eans disa'le&ent of an e&plo"ee to earn wages in the sa&e ;ind of wor;, or wor; of si&ilar nat!re that *he+ was trained for or acc!sto&ed to perfor&, or an" ;ind of wor; which a person of *his+ &entalit" and attain&ent co!ld do. It does not &ean a'sol!te helplessness. In disa'ilit" co&pensation, Be li;ewise held, it is not the inD!r" which is co&pensated, '!t rather it is the incapacit" to wor; res!lting in the i&pair&ent of one<s earning capacit".C *Philippine Trans&arine, Inc., vs. N2RC 0=0 SCR) ?.+ #1 On appeal '" petitioners, the National 2a'or Relations Co&&ission *N2RC+ affir&ed 2) -!errero<s Decision dated /a" 0%, #%%$. In a Decision ## dated !ne 0%, #%%@, the N2RC r!led that Dr. Chi!<s categorical and definite assess&ent sho!ld prevail over that of Dr. Ch!a, which failed to appro4i&ate the period needed '" /!nar to f!ll" recover and lac;ed clear 'asis. -iven the report of the co&pan",designated ph"sician who is !ns!re how &!ch ti&e co&plainant needs in order to f!ll" recover, and the report of co&plainant<s ph"sician who is certain in his own findings that co&plainant cannot go 'ac; to wor; given his present condition, this Co&&ission has no other o'vio!s choice than

to place its confidence and accordingl" !phold the findings of co&plainant<s ph"sician.#0 The N2RC denied petitioners< &otion for reconsideration in a Resol!tion #? dated )!g!st #$, #%%@. Petitioners filed a petition for certiorari #= with the C), alleging that the N2RC acted with grave a'!se of discretion in characteriAing /!nar<s disa'ilit" as total and per&anent. The N2RC sho!ld have !pheld Dr. Ch!a<s findings over those of Dr. Chi! whose ;nowledge of /!nar<s case is :!estiona'le. )part fro& the fact that it is Dr. Ch!a, 'eing the co&pan" designated ph"sician, who is tas;ed !nder the Philippine Overseas E&plo"&ent )d&inistration,Standard E&plo"&ent Contract *POE),SEC+ to deter&ine the nat!re and degree of a seafarer<s disa'ilit" or his fitness to perfor& sea d!ties, the relia'ilit" of his assess&ent springs fro& his !ndisp!ted fa&iliarit" with /!nar<s &edical condition. )s one of /!nar<s attending ph"sicians fro& the ti&e he was repatriated, Dr. Ch!a is in a position to give a &ore acc!rate appraisal of /!nar<s disa'ilit". /oreover, Dr. Ch!a<s assess&ent is 'ased on the findings of Dr. 2i& and Dr. Peri:!et who are 'oth specialists in the treat&ent and &anage&ent of spine inD!ries. 3!rther&ore, !nder the POE),SEC, herniated disc is not one of the disa'ilities that are classified as -rade 1. /!nar<s herniated or slipped disc onl" res!lted to partial loss of &otion of his lower e4tre&ities, which is classified as -rade $ i&pedi&ent !nder Section 0# of the POE),SEC. Petitioners clai& that for a spine inD!r" to 'e considered as -rade 1 disa'ilit", it sho!ld have 'ro!ght forth incontinence or rendered wal;ing i&possi'le even with the aid of cr!tches. G" wa" of the assailed decision, the C) fo!nd no grave a'!se of discretion on the part of the N2RC and r!led that /!nar<s contin!ed ina'ilit" to perfor& his !s!al sea d!ties, which is attri'!ta'le to his &edical condition that is wor;,related, despite s!rger" and seven *.+ &onths of ph"sical therap", concl!sivel" indicate that he is totall" and per&anentl" disa'led. The C) noted that while the co&pan",designated doctors did not categoricall" state that /!nar is !nfit for sea d!ties, this is easil" infera'le fro& their state&ent that he contin!es to e4perience pain, wea;ness and tenderness and wo!ld ta;e a long ti&e to recover. In the case at 'ar, despite his having !ndergone s!rgeries, treat&ent and ph"sical therap" of &ore than seven &onths fro& the inD!r", /!nar is still fo!nd '" all ph"sicians involved to contin!e to s!ffer fro& wea;ness, tenderness and pain that prevent hi& fro& doing stren!o!s activities. In fact, 1estrel<s own designated ph"sicians have stated this in their last report and fo!nd that /!nar was entitled to disa'ilit" 'enefits as he C*wo!ld+ ta;e a long ti&e to f!ll" recover.C Tho!gh the" did not state it, it is clear fro& these findings that /!nar is still !na'le to ret!rn to his c!sto&ar" wor; as a seafarer in an ocean,going vessel, d!e to the stren!o!s nat!re of the wor; de&anded '" it. No profit,&otivated ship owner will e&plo" /!nar 'eca!se of his condition. /!nar<s private ph"sician<s state&ent of this fact in his own report &erel" confir&s what is alread" o'vio!s. Sho!ld he even tr", /!nar is certain to get dis:!alified as seafarer since s!ch an e&plo"&ent will re:!ire hi& to !ndergo rigoro!s ph"sical e4a&inations which he is s!re to fail 'eca!se of the sorr" state of his ph"sical health.

Th!s, it is not even necessar" to address 1estrel et al.<s arg!&ents as to the pers!asive or 'inding nat!re of the findings of the co&pan",designated ph"sicians since, as earlier stated, the" have 'een r!led to 'e not 'inding nor concl!sive on the co!rts. In fact, the findings of 1estrel<s co&pan",designated doctors the&selves do not categoricall" state that /!nar is fit to ret!rn to wor;9 on the contrar", the" state that /!nar still s!ffers fro& wea;ness, tenderness and pain and is entitled to disa'ilit" 'enefits. Th!s, the onl" iss!e left for resol!tion is the a&o!nt of disa'ilit" pa"&ents d!e to /!nar.#( *Citations o&itted+ Nonetheless, while the C) agreed with the N2RC that /!nar<s spine inD!r" is a -rade 1 disa'ilit", it dee&ed proper to red!ce the a&o!nt of attorne"<s fees to two percent *#L+ of his disa'ilit" 'enefits. Be find, however, that the grant '" p!'lic respondent of 1%L of I(%,%%% as attorne"<s fees is e4or'itant and witho!t an" stated 'asis, since it was not proven that 1estrelJ,K et al. acted in gross and evident 'ad faith in den"ing /!nar<s clai& of I&pedi&ent -rade 1 co&pensation. The records 'ear that 1estrel in fact offered to pa" I&pedi&ent -rade $ co&pensation, or I1(,.@=.%%, to /!nar in good faith, which the latter ref!sed. G!t since the instant case is an action for recover" of co&pensation '" a la'orer, attorne"<s fees are still d!e 'ased on )rticle ##%$*$+ of the Civil Code, al'eit on a red!ced a&o!nt of two percent *#L+ of the &ain award, which Be dee& to 'e the reasona'le fee !nder the circ!&stances. #. In a Resol!tion#$ dated Septe&'er (, #%11, the C) denied petitioners< &otion for reconsideration. Iss!e There is no disp!te that /!nar<s spine inD!r" is wor;,related and that he is entitled to disa'ilit" 'enefits. The 'one of contention is how to classif" s!ch inD!r" in order to deter&ine the a&o!nt of 'enefits d!e to hi&. There is a conflict 'etween the disa'ilit" ratings &ade '" the co&pan",designated ph"sician and /!nar<s doctor, of,choice and petitioners clai& that holding the latter<s deter&ination to 'e &ore credi'le is contrar" to the provisions of the POE),SEC and prevailing D!rispr!dence. )'sent an" s!'stantial challenge to the co&petence and s;ill of the co&pan", designated doctors, there is no reason wh" their assess&ent sho!ld not 'e given d!e credence. Petitioners insist on the correctness of the grade assigned '" their doctors on /!nar<s disa'ilit". )ccording to petitioners, /!nar<s herniated disc is not a -rade 1 i&pedi&ent as it did not disa'le hi& fro& wal;ing or rendered hi& incontinent. /!nar s!ffers fro& C&oderate rigidit" or two thirds *#50+ loss of &otion or lifting power of the tr!n;C and !nder Section 0# of the POE),SEC, this is a -rade $ and not a -rade 1 i&pedi&ent. /!nar cannot clai&, petitioners f!rther posit, that he is totall" and per&anentl" disa'led and clai& the 'enefits corresponding to -rade 1 disa'ilities si&pl" 'eca!se he has not "et f!ll" recovered after the lapse of 1#% da"s fro& the ti&e he signed,off fro& /56 So!thern 7nit". The nat!re of disa'ilit" and the 'enefits

attached thereto are deter&ined '" the &anner the" are graded or classified !nder the POE) and not '" the n!&'er of da"s that a seafarer is !nder treat&ent. If a seafarer has an inD!r" or &edical condition that is not considered a -rade 1 i&pedi&ent !nder the POE),SEC, then he cannot clai& that he is totall" or per&anentl" disa'led. To allow the contrar" wo!ld render na!ght the sched!le of disa'ilities !nder the POE),SEC. O!r R!ling This Co!rt resolves to DENN the petition. Indeed, !nder Section 0##@ of the POE),SEC, onl" those inD!ries or disa'ilities that are classified as -rade 1 &a" 'e considered as total and per&anent. >owever, if those inD!ries or disa'ilities with a disa'ilit" grading fro& # to 1?, hence, partial and per&anent, wo!ld incapacitate a seafarer fro& perfor&ing his !s!al sea d!ties for a period of &ore than 1#% or #?% da"s, depending on the need for f!rther &edical treat&ent, then he is, !nder legal conte&plation, totall" and per&anentl" disa'led. In other words, an i&pedi&ent sho!ld 'e characteriAed as partial and per&anent not onl" !nder the Sched!le of Disa'ilities fo!nd in Section 0# of the POE),SEC '!t sho!ld 'e so !nder the relevant provisions of the 2a'or Code and the )&ended R!les on E&plo"ee Co&pensation *)REC+ i&ple&enting Title II, Goo; I6 of the 2a'or Code. That while the seafarer is partiall" inD!red or disa'led, he is not precl!ded fro& earning doing the sa&e wor; he had 'efore his inD!r" or disa'ilit" or that he is acc!sto&ed or trained to do. Otherwise, if his illness or inD!r" prevents hi& fro& engaging in gainf!l e&plo"&ent for &ore than 1#% or #?% da"s, as the case &a" 'e, he shall 'e dee&ed totall" and per&anentl" disa'led. /oreover, the co&pan",designated ph"sician is e4pected to arrive at a definite assess&ent of the seafarer<s fitness to wor; or per&anent disa'ilit" within the period of 1#% or #?% da"s. That sho!ld he fail to do so and the seafarer<s &edical condition re&ains !nresolved, the seafarer shall 'e dee&ed totall" and per&anentl" disa'led. It is settled that the provisions of the 2a'or Code and )REC on disa'ilities are applica'le to the case of seafarers s!ch that the POE),SEC is not the sole iss!ance that governs their rights in the event of wor;,related death, inD!r" or illness. )s r!led in Re&igio v. N2RC80% Second. Is the 2a'or Code<s concept of per&anent total disa'ilit" applica'le to the case at 'arO Petitioner clai&s to have s!ffered fro& per&anent total disa'ilit" as defined !nder )rticle 1@#*c+*1+ of the 2a'or Code, viA8 )rt. 1@# *c+. The following disa'ilities shall 'e dee&ed total and per&anent8 *1+ Te&porar" total disa'ilit" lasting contin!o!sl" for &ore than one h!ndred twent" da"s, e4cept as otherwise provided in the R!les9 4 4 4 Petitioner li;ewise cites 6icente v. ECC and )'a"a, r. v. ECC, 'oth of which were decided appl"ing the 2a'or Code provisions on disa'ilit" 'enefits. Private

respondents, on the other hand, contend that petitioner erred in appl"ing the definition of Cper&anent total disa'ilit"C !nder the 2a'or Code and cases decided !nder the ECC as the instant case involves a contract!al clai& !nder the 1@@( POE) SEC. )gain, we r!le for petitioner. The standard e&plo"&ent contract for seafarers was for&!lated '" the POE) p!rs!ant to its &andate !nder E.O. No. #?. to Csec!re the 'est ter&s and conditions of e&plo"&ent of 3ilipino contract wor;ers and ens!re co&pliance therewithC and to Cpro&ote and protect the well,'eing of 3ilipino wor;ers overseas.C Section #@ of the 1@@( POE) SEC itself provides that Call rights and o'ligations of the parties to the Contract, incl!ding the anne4es thereof, shall 'e governed '" the laws of the Rep!'lic of the Philippines, international conventions, treaties and covenants where the Philippines is a signator".C Even witho!t this provision, a contract of la'or is so i&pressed with p!'lic interest that the New Civil Code e4pressl" s!'Dects it to Cthe special laws on la'or !nions, collective 'argaining, stri;es and loc;o!ts, closed shop, wages, wor;ing conditions, ho!rs of la'or and si&ilar s!'Dects.C Th!s, the Co!rt has applied the 2a'or Code concept of per&anent total disa'ilit" to the case of seafarers. In Philippine Trans&arine Carriers v. N2RC, sea&an Carlos Nietes was fo!nd to 'e s!ffering fro& congestive heart fail!re and cardio&"opath" and was declared as !nfit to wor; '" the co&pan",accredited ph"sician. The Co!rt affir&ed the award of disa'ilit" 'enefits to the sea&an, citing ECC v. Sanico, -SIS v. C), and GeDerano v. ECC that Cdisa'ilit" sho!ld not 'e !nderstood &ore on its &edical significance '!t on the loss of earning capacit". Per&anent total disa'ilit" &eans disa'le&ent of an e&plo"ee to earn wages in the sa&e ;ind of wor;, or wor; of si&ilar nat!re that he was trained for or acc!sto&ed to perfor&, or an" ;ind of wor; which a person of his&entalit" and attain&ent co!ld do. It does not &ean a'sol!te helplessness.C It li;ewise cited GeDerano v. ECC, that in a disa'ilit" co&pensation, it is not the inD!r" which is co&pensated, '!t rather it is the incapacit" to wor; res!lting in the i&pair&ent of one<s earning capacit". 01 *Citations o&itted+ In 6ergara v. >a&&onia /ariti&e Services, Inc., 0# this Co!rt read the POE),SEC in har&on" with the 2a'or Code and the )REC in interpreting in holding that8 *a+ the 1#% da"s provided !nder Section #%,G*0+ of the POE),SEC is the period given to the e&plo"er to deter&ine fitness to wor; and when the seafarer is dee&ed to 'e in a state of total and te&porar" disa'ilit"9 *'+ the 1#% da"s of total and te&porar" disa'ilit" &a" 'e e4tended !p to a &a4i&!& of #?% da"s sho!ld the seafarer re:!ire f!rther &edical treat&ent9 and *c+ a total and te&porar" disa'ilit" 'eco&es per&anent when so declared '" the co&pan",designated ph"sician within 1#% or #?% da"s, as the case &a" 'e, or !pon the e4piration of the said periods witho!t a declaration of either fitness to wor; or per&anent disa'ilit" and the seafarer is still !na'le to res!&e his reg!lar seafaring d!ties. P!oted 'elow are the relevant portions of this Co!rt<s Decision dated Octo'er (, #%%$8 In real ter&s, this &eans that the shipownerQan e&plo"er operating o!tside Philippine D!risdictionQdoes not s!'Dect itself to Philippine laws, e4cept to the

e4tent that it concedes the coverage and application of these laws !nder the POE) Standard E&plo"&ent Contract. On the &atter of disa'ilit", the e&plo"er is not s!'Dect to Philippine D!risdiction in ter&s of 'eing co&pelled to contri'!te to the State Ins!rance 3!nd that, !nder the 2a'or Code, Philippine e&plo"ers are o'liged to s!pport. *This 3!nd, ad&inistered '" the E&plo"ees< Co&pensation Co&&ission, is the so!rce of wor;,related co&pensation pa"&ents for wor;,related deaths, inD!ries, and illnesses.+ Instead, the POE) Standard E&plo"&ent Contract provides its own s"ste& of disa'ilit" co&pensation that appro4i&ates *and even e4ceeds+ the 'enefits provided !nder Philippine law. The standard ter&s agreed !pon, as a'ove pointed o!t, are intended to 'e read and !nderstood in accordance with Philippine laws, partic!larl", )rticles 1@1 to 1@0 of the 2a'or Code and the applica'le i&ple&enting r!les and reg!lations in case of an" disp!te, clai& or grievance. In this respect and in the conte4t of the present case, )rticle 1@#*c+*1+ of the 2a'or Code provides that8 4444 The r!le referred to F R!le R, Section # of the R!les and Reg!lations i&ple&enting Goo; I6 of the 2a'or Code F states8 4444 These provisions are to 'e read hand in hand with the POE) Standard E&plo"&ent Contract whose Section #% *0+ states8 4444 )s these provisions operate, the seafarer, !pon sign,off fro& his vessel, &!st report to the co&pan",designated ph"sician within three *0+ da"s fro& arrival for diagnosis and treat&ent. 3or the d!ration of the treat&ent '!t in no case to e4ceed 1#% da"s, the sea&an is on te&porar" total disa'ilit" as he is totall" !na'le to wor;. >e receives his 'asic wage d!ring this period !ntil he is declared fit to wor; or his te&porar" disa'ilit" is ac;nowledged '" the co&pan" to 'e per&anent, either partiall" or totall", as his condition is defined !nder the POE) Standard E&plo"&ent Contract and '" applica'le Philippine laws. If the 1#% da"s initial period is e4ceeded and no s!ch declaration is &ade 'eca!se the seafarer re:!ires f!rther &edical attention, then the te&porar" total disa'ilit" period &a" 'e e4tended !p to a &a4i&!& of #?% da"s, s!'Dect to the right of the e&plo"er to declare within this period that a per&anent partial or total disa'ilit" alread" e4ists. The sea&an &a" of co!rse also 'e declared fit to wor; at an" ti&e s!ch declaration is D!stified '" his &edical condition. 4444 )s we o!tlined a'ove, a te&porar" total disa'ilit" onl" 'eco&es per&anent when so declared '" the co&pan" ph"sician within the periods he is allowed to do so, or !pon the e4piration of the &a4i&!& #?%,da" &edical treat&ent period witho!t a

declaration of either fitness to wor; or the e4istence of a per&anent disa'ilit". In the present case, while the initial 1#%,da" treat&ent or te&porar" total disa'ilit" period was e4ceeded, the co&pan",designated doctor d!l" &ade a declaration well within the e4tended #?%,da" period that the petitioner was fit to wor;. 6iewed fro& this perspective, 'oth the N2RC and C) were legall" correct when the" ref!sed to recogniAe an" disa'ilit" 'eca!se the petitioner had alread" 'een declared fit to res!&e his d!ties. In the a'sence of an" disa'ilit" after his te&porar" total disa'ilit" was addressed, an" f!rther disc!ssion of per&anent partial and total disa'ilit", their e4istence, distinctions and conse:!ences, 'eco&es a s!rpl!sage that serves no !sef!l p!rpose.00*Citations o&itted+ Conse:!entl", if after the lapse of the stated periods, the seafarer is still incapacitated to perfor& his !s!al sea d!ties and the co&pan",designated ph"sician had not "et declared hi& fit to wor; or per&anentl" disa'led, whether total or per&anent, the concl!sive pres!&ption that the latter is totall" and per&anentl" disa'led arises. On the other hand, if the co&pan",designated ph"sician declares the sea&an fit to wor; within the said periods, s!ch declaration sho!ld 'e respected !nless the ph"sician chosen '" the sea&an and the doctor selected '" 'oth the sea&an and his e&plo"er declare otherwise. )s provided !nder Section #%,G*0+ of the POE),SEC, a seafarer &a" cons!lt another doctor and in case the latter<s findings differ fro& those of the co&pan",designated ph"sician, the opinion of a third doctor chosen '" 'oth parties &a" 'e sec!red and s!ch shall 'e final and 'inding. The sa&e proced!re sho!ld 'e o'served in case a seafarer, 'elieving that he is totall" and per&anentl" disa'led, disagrees with the declaration of the co&pan",designated ph"sician that he is partiall" and per&anentl" disa'led. In 6ergara, as 'etween the deter&inations &ade '" the co&pan",designated ph"sician and the doctor appointed '" the sea&an, the for&er sho!ld prevail a'sent an" indication that the a'ove proced!re was co&plied with8 The POE) Standard E&plo"&ent Contract and the CG) clearl" provide that when a seafarer s!stains a wor;,related illness or inD!r" while on 'oard the vessel, his fitness or !nfitness for wor; shall 'e deter&ined '" the co&pan",designated ph"sician. If the ph"sician appointed '" the seafarer disagrees with the co&pan", designated ph"sician<s assess&ent, the opinion of a third doctor &a" 'e agreed Dointl" 'etween the e&plo"er and the seafarer to 'e the decision final and 'inding on the&. Th!s, while petitioner had the right to see; a second and even a third opinion, the final deter&ination of whose decision &!st prevail &!st 'e done in accordance with an agreed proced!re. 7nfort!natel", the petitioner did not avail of this proced!re9 hence, we have no option '!t to declare that the co&pan",designated doctor<s certification is the final deter&ination that &!st prevail. 4 4 4. 0? *Citation o&itted+ In this case, the following are !ndisp!ted8 *a+ when /!nar filed a co&plaint for total and per&anent disa'ilit" 'enefits on )pril 1., #%%., 1$1 da"s had lapsed fro& the ti&e he signed,off fro& /56 So!thern 7nit" on Octo'er 1$, #%%(9 *'+ Dr. Ch!a iss!ed a disa'ilit" grading on /a" 0, #%%. or after the lapse of 1@. da"s9 and *c+ /!nar sec!red the opinion of Dr. Chi! on /a" #1, #%%.9 *d+ no third doctor was cons!lted '" the parties9 and *e+ /!nar did not :!estion the co&petence and s;ill

of the co&pan",designated ph"sicians and their fa&iliarit" with his &edical condition. It &a" 'e arg!ed that these provide s!fficient gro!nds for the dis&issal of /!nar<s co&plaint. Considering that the #?%,da" period had not "et lapsed when the N2RC was as;ed to intervene, /!nar<s co&plaint is pre&at!re and no ca!se of action for total and per&anent disa'ilit" 'enefits had set in. Bhile 'e"ond the 1#%,da" period, Dr. Ch!a<s &edical report dated /a" 0, #%%. was iss!ed within the #?%,da" period. /oreover, /!nar did not contest Dr. Ch!a<s findings !sing the proced!re o!tlined !nder Section #%,G*0+ of the POE),SEC. 3or 'eing /!nar<s attending ph"sicians fro& the ti&e he was repatriated and given their specialiAation in spine inD!ries, the findings of Dr. Peri:!et and Dr. 2i& constit!te s!fficient 'ases for Dr. Ch!a<s disa'ilit" grading. )s /!nar did not allege, &!ch less, prove the contrar", there e4ists no reason wh" Dr. Chi!<s assess&ent sho!ld 'e preferred over that of Dr. Ch!a. It &!st 'e noted, however, that when /!nar filed his co&plaint, Dr. Ch!a had not "et deter&ined the nat!re and e4tent of /!nar<s disa'ilit". )lso, /!nar was still !ndergoing ph"sical therap" and his spine inD!r" had "et 'een f!ll" addressed. 3!rther&ore, when /!nar filed a clai& for total and per&anent disa'ilit" 'enefits, &ore than 1#% da"s had gone '" and the prevailing r!le then was that en!nciated '" this Co!rt in Cr"stal Shipping, Inc. v. Natividad 0= that total and per&anent disa'ilit" refers to the seafarer<s incapacit" to perfor& his c!sto&ar" sea d!ties for &ore than 1#% da"s. Partic!larl"8 Per&anent disa'ilit" is the ina'ilit" of a wor;er to perfor& his Do' for &ore than 1#% da"s, regardless of whether or not he loses the !se of an" part of his 'od". )s gleaned fro& the records, respondent was !na'le to wor; fro& )!g!st 1$, 1@@$ to 3e'r!ar" ##, 1@@@, at the least, or &ore than 1#% da"s, d!e to his &edical treat&ent. This clearl" shows that his disa'ilit" was per&anent. Total disa'ilit", on the other hand, &eans the disa'le&ent of an e&plo"ee to earn wages in the sa&e ;ind of wor; of si&ilar nat!re that he was trained for, or acc!sto&ed to perfor&, or an" ;ind of wor; which a person of his &entalit" and attain&ents co!ld do. It does not &ean a'sol!te helplessness. In disa'ilit" co&pensation, it is not the inD!r" which is co&pensated, '!t rather it is the incapacit" to wor; res!lting in the i&pair&ent of one<s earning capacit". 4444 Petitioners tried to contest the a'ove findings '" showing that respondent was a'le to wor; again as a chief &ate in /arch #%%1. Nonetheless, this infor&ation does not alter the fact that as a res!lt of his illness, respondent was !na'le to wor; as a chief &ate for al&ost three "ears. It is of no conse:!ence that respondent was c!red after a co!ple of "ears. The law does not re:!ire that the illness sho!ld 'e inc!ra'le. Bhat is i&portant is that he was !na'le to perfor& his c!sto&ar" wor; for &ore than 1#% da"s which constit!tes per&anent total disa'ilit". )n award of a total and per&anent disa'ilit" 'enefit wo!ld 'e ger&ane to the p!rpose of the 'enefit, which is to help the e&plo"ee in &a;ing ends &eet at the ti&e when he is !na'le to wor;.0( *Citations o&itted and e&phasis s!pplied+

Conse:!entl", that after the e4piration of the 1#%,da" period, Dr. Ch!a had not "et &ade an" declaration as to /!nar<s fitness to wor; and /!nar had not "et f!ll" recovered and was still incapacitated to wor; s!fficed to entitle the latter to total and per&anent disa'ilit" 'enefits. In addition, that it was '" operation of law that 'ro!ght forth the concl!sive pres!&ption that /!nar is totall" and per&anentl" disa'led, there is no legal co&p!lsion for hi& to o'serve the proced!re prescri'ed !nder Section #%,G*0+ of the POE),SEC. ) seafarer<s co&pliance with s!ch proced!re pres!pposes that the co&pan",designated ph"sician ca&e !p with an assess&ent as to his fitness or !nfitness to wor; 'efore the e4piration of the 1#%,da" or #?%,da" periods. )lternativel" p!t, a'sent a certification fro& the co&pan",designated ph"sician, the seafarer had nothing to contest and the law steps in to concl!sivel" characteriAe his disa'ilit" as total and per&anent. This Co!rt<s prono!nce&ents in 6ergara presented a restraint against the indiscri&inate reliance on Cr"stal Shipping s!ch that a seafarer is i&&ediatel" catap!lted into filing a co&plaint for total and per&anent disa'ilit" 'enefits after the e4piration of 1#% da"s fro& the ti&e he signed,off fro& the vessel to which he was assigned. Partic!larl", a seafarer<s ina'ilit" to wor; and the fail!re of the co&pan",designated ph"sician to deter&ine fitness or !nfitness to wor; despite the lapse of 1#% da"s will not a!to&aticall" 'ring a'o!t a shift in the seafarer<s state fro& total and te&porar" to total and per&anent, considering that the condition of total and te&porar" disa'ilit" &a" 'e e4tended !p to a &a4i&!& of #?% da"s. Nonetheless, 6ergara was pro&!lgated on Octo'er (, #%%$, or &ore than two *#+ "ears fro& the ti&e /!nar filed his co&plaint and o'servance of the principle of prospectivit" dictates that 6ergara sho!ld not operate to strip /!nar of his ca!se of action for total and per&anent disa'ilit" that had alread" accr!ed as a res!lt of his contin!ed ina'ilit" to perfor& his c!sto&ar" wor; and the fail!re of the co&pan", designated ph"sician to iss!e a final assess&ent. B>ERE3ORE, pre&ises considered, the petition is DENIED. The Decision dated an!ar" #$, #%11 and Resol!tion dated Septe&'er (, #%11 of the Co!rt of )ppeals in C),-.R. SP No. 11%$.$ are )33IR/ED. SO ORDERED.