[1]

No. L-26341. November 27, 1968.

ILOILO DOCK & ENGINEERING Co., petitioner, vs. WORKMEN'S COMPENSATION
COMMISSION and IRENEA M. PABLO, f or herself and in behalf of her minor children
EDWIN, EDGAR and EDNA, all surnamed PABLO, respondents.
Workmen's Compensation Act;  When compensation may be granted; Injuries
sustained off the premise; When "assault" may be considered as an "accident" within the
meaning of the Workmen's Compensation Act; Resume' of governing principles.—In
resumé:

1. Workmen's compensation is granted if the injuries result from an accident which

arise out of and in the course of employment.
2. Both the "arising" factor and the "course" factor must be present. If one factor is
weak and the other is strong, the injury is compensable, but not where both factors are
weak. Ultimately, the question is whether the accident is work-connected.
3. In a proceeding for the enforcement of a claim, the same is presumed to come within
the provisions of the Workmen's Compensation Act. But a preliminary link must first be
shown to exist between the injury and the employment. Thus if the injury occurred in
the course of employment, it is presumed to have arisen out of the employment.
4. The "course" factor applies to time, place and circumstances. This factor is present if
the injury takes place within the period of employment, at a place where the employee may
be, and while he is fulfilling his duties or is engaged in doing something incidental thereto.
5. The rule is that an injury sustained while the employee goes to or comes from his
place of work, is not of the employment.
6. The exception to the rule is an injury sustained off the employee's premise, but while
in close proximity thereto and while using a customary means of ingress and egress. The
reason for extending the scope of "course of employment" to off-premises injuries is that
there is a causal connection between the work and the hazard.
7. An "assault" may be considered an "accident" within the meaning of the Workmen's
Compensation Act. The employment may either increase risk of assault because of its
nature or be the subject-matter of a dispute leading the assault.
The question as to where the line should be drawn beyond which the liability of the
employer cannot continue has been held to be usually one of fact.

Same;  Where employment extends.—Employment includes not only the actual doing
of the work, but a reasonable margin of time and space necessary to be used in passing to
and from the place where the work is to be done. If the employee be injured while passing,
with the express or implied consent of the employer, to or from his work by a way over the
employer's premises, or over those of another in such proximity and relation as to be in
practical effect a part of the employer's premises, the injury is one arising out of and in the
course of the employment as much as though it had happened while the employee was
engaged in his work at the place of its performance. In other words, the employment may
begin in point of time before the work is entered upon and in point of space before the place
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where the work is to be done is reached. Probably, as a general rule, 'employment may be
said to begin when the employee reaches the entrance to the employer's premises where the
work is to be done; "but it is clear that in some cases the rule extends to include adjacent
premises used by the employee as a means of ingress and egress with the express or implied
consent of the employer" (Bountiful Brick Company v. Giles, 72 L. ed. 507, Feb. 20, 1928).

Same;  Assault by third persons; Case at bar.—The ruling in Kelty v. Travellers

Insurance Company, 391 SW 2d 558, is applicable in the case at bar. That part of the road
where Pablo was killed is in very close proximity to the employer's premises. It is an
"access area" "so clearly related to the employee's premises as to be fairly treated as a part
of the employer's premises." That portion of the road bears "so intimate a relation" to the
company's premises. It is the chief means of entering the IDECO premises, either for the
public or for its employees. The IDECO uses if extensively in pursuit of its business. It has
rights of passage over the road, either legal, if by virtue of easement, or contractual, if by
reason of lease. Pablo was using the road as a means of access to his work solely because he
was an employee. For this reason, the IDECO was under obligation to keep the place safe
for its employees. Safe, that is, against dangers that the employees might encounter therein,
one of these dangers being assault by third persons. Having failed to take the proper security
measures over the said area which it controls, the IDECO is liable for the injuries suffered
by Pablo resulting in his death.

APPEAL from a decision of the Workmen's Compensation Commission.

The f acts are stated in the opinion of the Court.

     Luisito C. Hofileña for petitioner.
     Villavieja & Villanueva for respondent Workmen's Compensation Commission.
     Gualberto C. Opong for respondent Irenea M. Pablo and her minor children.

CASTRO, J.:

This is an appeal by the Iloilo Dock and Engineering Company (hereinafter referred
to as the IDECO) from the decision dated February 28, 1966 of the Workmen's
Compensation Commission (hereinafter referred to as the Commission) affirming
the decision of the Regional Office VII in Iloilo City, and ordering the IDECO to pay
to the widow and children of Teodoro G. Pablo (Irenea M. Pablo and the minors
Edwin, Edgar and Edna, all surnamed Pablo) the sum of P4,000, to pay to the
widow P89 as reimbursement for burial expenses and P300 as attorney's fees, and
to pay to the Commission the amount of P46 as fees pursuant to section 55 of the
Workmen's Compensation Act, as amended.

At about 5:02 o'clock in the afternoon of January 29, 1960, Pablo, who was
employed as a mechanic of the IDECO, while walking on his way home, was shot
to death in front of, and about 20 meters away from, the main IDECO gate, on a
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private road commonly called the IDECO road. The slayer, Martin Cordero, was not
heard to say anything before or after the killing. The motive for the crime was and
still is unknown as Cordero was himself killed before he could be tried for Pablo's
death. At the time of the killing, Pablo's companion was Rodolfo Galopez, another
employee, who, like Pablo, had finished overtime work at 5:00 p.m. and was going
home. From the main IDECO gate to the spot where Pablo was killed, there were
four "carinderias" on the left side of the road and two "carinderias" and a residential
house on the right side. The entire length of the road is nowhere stated in the
record.

According to the IDECO, the Commission erred (1) in holding that Pablo's death
occurred in the course of employment and in presuming that it arose out of the
employment; (2) in applying the "proximity rule;" and (3) in holding that Pablo's
death was an accident within the purview of the Workmen's Compensation Act.

The principal issue is whether Pablo's death comes within the meaning and
intendment of that "deceptively simple and litigiously prolific",1 phrase The two
components of the coverage formula — "arising out of" and "in the course of
employment."2 The two components of the coverage formula — "arising out of" and
"in the course of employment" — are said to be separate tests which must be
independently satisfied;3 however, it should not be forgotten that the basic concept
of compensation coverage is unitary, not dual, and is best expressed in the word,
"work-connection," because an uncompromising insistence on an independent
application of each of the two portions of the test can, in certain cases, exclude
clearly work-connected injuries.4 The words "arising out of" refer to the origin or
cause of the accident, and are descriptive of its character, while the words "in the
course of" refer to the time, place and circumstances under which the accident
takes place.5

As a matter of general proposition, an injury or accident is said to arise "in the

course of employment" when it takes place within the period of the employment, at
a place where the employee reasonably may be, and while he is fulfilling his duties
or is engaged in doing something incidental thereto.6

The general rule in workmen's compensation law known as the "going & coming
rule," simply stated, is that "in the absence of special circumstances, an employee
injured in, going to, or coming from his place of work is excluded from the benefits
of workmen's compensation acts."7 This rule, however, admits of four well-
recognized exceptions, to wit: (1) where the employee is proceeding to or from his
work on the premises of his employer; (2) where the employee is about to enter or
about to leave the premises of his employer by way of the exclusive or customary
means of ingress and egress; (3) where the employee is charged, while on his way
to or from his place of employment or at his home, or during his employment, with
some duty or special errand connected with his employment; and (4) where the

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employer, as an incident of the employment, provides the means of transportation
to and from the place of employment.8

We address ourselves particularly to an examination and consideration of the

second exception, i.e., injuries sustained off the premises of the employer, but
while using a customary means of ingress and egress.

This exception, known as the "proximity rule," was applied in Philippine Fiber
Processing Co., Inc. vs. Ampil.9 There, the employee, at about 5:15 a.m., while
proceeding to his place of work and running to avoid the rain, slipped and fell into a
ditch fronting the main gate of the employer's factory, as a result of which he died
the next day. The sole question was whether or not the accident which caused the
employee's death arose out of and in the course of his employment. This Court
ruled in favor of the claimant thus:

The very case of Afable vs. Singer Sewing Machine Co. invoked by the petitioner
intimated that "we do not of course mean to imply that an employee can never
recover for injuries suffered while on his way to or from work. That depends on the
nature of his employment." Considering the facts found by the Commission,
namely, that the deceased Angel Ariar was not under any shift routine; that his
assignment covered the entire working hours of the factory; that the first working
hour starts at 6:00 o'clock in the morning; that it takes at least thirty minutes before
the machine operates at full speed or load; that the spot where he fell (ditch fronting
petitioner's factory or sidewalk of its premises), is immediately proximate to his
place of work, the accident in question must be deemed to have occurred within the
zone of his employment and therefore arose out of and in the course thereof. In
Salilig vs. Insular Lumber Co., G.R. No. 28951, September 10, 1928, referred to in
the Comments on the Workmen's Compensation Commission Act by Morabe and
Inton, 1955 edition, compensation was allowed for injury received by a laborer from
an accident in going to his place of work, along a path or way owned by his
employer and commonly used by the latter's laborers.

In contrast is Pampanga Sugar Development Co., Inc. vs. Quiroz,10 which

concerned injuries sustained by a centrifugal operator. He had reported for work at
9:30 p.m. (March 7, 1958) and was dismissed at 5:30 the following morning. Soon
"after he stepped out of the company gate, and while standing about 2-½ meters
from it between the shoulder of the highway and a railroad that came from inside
the compound and intersected the highway, waiting for a ride home, he was
bumped by a jeepney, as a result of which he sustained" injuries. In holding that
these injuries were "not produced by an accident "arising out of and in the course of
employment," " this Court reasoned thus:

The compensability of an injury suffered by an employee proceeding to or coming

from his work depends upon whether or not it is "work-connected." As Chief Justice

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Kenison of New Hampshire has put it, "the fact that the employee is travelling to or
from work on a public highway does not necessarily exclude coverage (Brousseau
vs. Blackstone Mills, 130 A 2d 543, 545). Conversely, it is not enough to say that
the employee would not have been on the public highway had it not been for his
job, since the same can usually be said of the general public (Payne & Dolan vs.
Industrial Commission, 46 NE 2d 925). The law, in effect, insures the employee
against losses arising from the perils of his work. In other words, the Workmen's
Compensation Act covers occupational injuries, which, as such, must have a
causative connection with something, not merely in common with the public, but
peculiar to the employment. In order to warrant recovery for off-the-premises
injuries, it must be shown that there has been a very special danger, some
particular risk which the employer could have caused or allowed to exist. Hence,

It is significant that practically all successful off-the-premises cases have involved

normal route of access to the plant, or an icy sidewalk adjacent to the premises and
therefore identified with the premises in the sense that the employer should have
removed the ice. (Emphasis ours.)

It is true that in Philippine Fiber Processing Co. v. Ampil, G.R. No. L-8130 (June 30,
1956), we held the employer liable for an injury sustained by an employee who, as
he was running to his place of work to avoid the rain, slipped and fell into a ditch in
front of the factory's main gate and near the same. The ditch was, however, in itself
an obvious hazard which, owing to its proximity to the gate, the employer should
have taken measures to remove. Thus, thru his inaction, he had contributed, in a
special way, to the occurrence of the accident.

In the case at bar, no such special circumstance appears to exist. There is no

particular causative connection between the injury sustained by the employee and
either his work or his employer. Although, as stated in the decision appealed from,
the record does not show that the company "had taken measures to make the
waiting place safe for the employees," neither does the record show either that the
accident occurred at the usual waiting place of the employees, or that said place
was particularly unsafe.

Our Workmen's Compensation Act being essentially American in origin and text, it
is not amiss to pay deference to pertinent American jurisprudence. In the precise
area of law here involved, we can draw guidance from an affluence of Federal and
State precedents.

From Samuel B. Horovitz' Injury and Death under Workmen's Compensation Laws
(1944), pp. 159 to 165, we glean the following observations:

Suppose, however, that the injury occurs on the way to work or on the way home
from work. Injuries going to or from work have caused many judicial upheavals.

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The question here is limited to whether the injuries are "in the course of" and not
"out of" the employment. How the injury occurred is not in point. Street risks,
whether the employee was walking or driving, and all other similar questions deal
with the risk of injury or "out of" the employment. "In the course of" deals mainly
with the element of time and space, or "time, place and circumstances."

Thus, if the injury occurred fifteen minutes before working hours and within one
hundred feet of the employer's premises, on sidewalks or public roads, the question
of "in the course of" the employment is flatly raised.

Some of our states refuse to extend this definition of "in the course of" to include
these injuries. Most of the states will protect the employee from the moment his foot
or person reaches the employer's premises, whether he arrives early or late. These
states find something sacred about the employment premises and define
"premises" very broadly, not only to include premises owned by the employer, but
also premises leased, hired, supplied or used by him, even private alleyways
merely used by the employer. Adjacent private premises are protected by many
states, and a few protect the employee even on adjacent public sidewalks and
streets. Where a city or any employer owns or controls an island, all its streets are
protected premises.

There is no reason in principle why states should not protect employees for a
reasonable period of time prior to or after working hours and for a reasonable
distance before reaching or after leaving the employer's premises. The Supreme
Court of the United States has declared that it will not overturn any state decision
that so enlarges the scope of its act. Hence, a deaf worker, trespassing on railroad
tracks adjacent to his employer's brick-making premises (but shown by his
superintendent the specific short crossing over the track), and killed by a train, was
held to be in the course of his employment when hit by an oncoming train fifteen
minutes before his day would have begun. So long as causal relation to the
employment is discernible, no federal question arises.

The narrow rule that a worker is not in the course of his employment until he
crosses the employment threshold is itself subject to many exceptions. Off-
premises injuries to or from work, in both liberal and narrow states, are
compensable (1) if the employee is on the way to or from work in a vehicle owned
or supplied by the employer, whether in a public (e.g., the employer's street car) or
private conveyance; (2) if the employee is subject to call at all hours or at the
moment of injury; (3) if the employee is travelling for the employer, i.e., travelling
workers; (4) if the employer pays for the employee's time from the moment he
leaves his home to his return home; (5) if the employee is on his way to do further
work at home, even though on a fixed salary; (6) where the employee is required to
bring his automobile to his place of business for use there. Other exceptions
undoubtedly are equally justified, dependent on their own peculiar circumstances.

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Schneider (supra, at p. 117) makes this significant statement:

The proximity rule exception to the general going and coming rule is that an
employee is generally considered to be in the course of his employment while
coming to or going from his work, when, though off the actual premises of his
employer, he is still in close proximity thereto, is proceeding diligently at an
appropriate time, by reasonable means, over the natural, practical, customary,
convenient and recognized way of ingress, or egress either on land under the
control of the employer, or on adjacent property with the express or implied consent
of the employer.

On pp. 98 to 99 of 85 ALR, we find the following disquisition:

The compensation acts have been very generally held not to authorize an award in
case of an injury or death from a peril which is common to all mankind, or to which
the public at large is exposed. 28 R.C. L. 804. And they do not as a general rule
cover injuries received while going to or from work on public streets, where the
employee has not reached, or has left the employer's premises. The question
whether an injury arises out of and in the course of the employment, however, is
one dependent upon the facts of each case, and in some cases, where an injury
occured while the employee was going to or from work, but was in the street in front
of the employer's premises, it has been held compensable.

Thus, in the reported case (Barnett v. Brtiling Cafeteria Co., ante, 85) the injury was
held to have arisen out of and in the course of the employment, where the
employee slipped on ice on the sidewalk immediately in front of the employer's
place of business, while on her way to report for duty, and just before entering by
the only entrance to her place of employment. The court here recognized the
general rule that, if an employee is injured while going to or from his work to his
house, or to or from some point not visited for the discharge of a duty arising out of
the employment, or while in the use of a public highway, he does not come within
the protection of the Workmen's Compensation Act, but stated that there is an
exception to this rule and that the employment is not limited by the actual time
when the workman reaches the scene of his labor and begins it, or when he
ceases, but includes a reasonable time and opportunity before and after, while he
is at or near his place of employment. The court reasoned that in the case at bar,
although the employee had not entered the employer's place of business, and the
sidewalk was a public highway so much therefore as was in front of the employer's
place of business was a necessary adjunct, used in connection with the business,
and that the sidewalk was to a limited degree and purpose a part of the employer's
premises.

In Industrial Commission v. Barber (1927) 117 Ohio St 373, 159 NE 363, the injury
was held to have arisen in the course of the employment where an employee,

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about five minutes before the hour when he was to go on duty, was struck by an
automobile owned and driven by another employee, within a short distance from
the employer's plant, which was located at the dead end of a street maintained by
the employer from its plant to the intersection with another street, and, although the
street was a public one, it led nowhere except to the employer's plant, and all of its
employees were obliged to use it in going to and from their work. The court stated
that where the conditions under the control of an industrial plant are such that the
employee has no option but to pursue a given course with reference to such
conditions and environments, the pursuance of such course is an implied obligation
of the employer in his contract with such employee, and that when he, for the
purpose of entering his employment, has entered into the sphere or zone controlled
by his employer and is pursuing a course with reference to which he has no option,
he is then not only within the conditions and environments of the plant of his
employer, but is then in the course of his employment; and that, when he receives
an injury attributable to such conditions and environments, there is a direct causal
connection between his employment and his injury, and the injury falls within the
class of industrial injuries for which compensation has been provided by the
Workmen's Compensation Law.

99 C.J.S., at pp. 807-814, has this to say:

It is laid down as a general rule, known as the "going and coming" rule, that, in the
absence of special circumstances, and except in certain unusual circumstances,
and where nothing else appears, harm or injury sustained by an employee while
going to or from his work is not compensable. Such injury, or accident, is regarded
by the weight of authority of many courts as not arising out of his employment, and
as not being, or not occurring, in the course thereof.

However, this rule is not inflexible, is not of inevitable application, and is subject to
qualifications, and to exceptions which depend on the nature, circumstances, and
conditions of the particular employment, the circumstances of the particular case,
and the cause of the injury.

Jaynes vs. Potlach Forests11 expresses with enlightening clarity the rationale for
extending the scope of "course of employment" to certain "off-premises" injuries:

We are urged here to again recognize and apply the distinction between off-
premises injuries which occur on private property and those which occur on public
streets and highways. The extension of the course of employment to off-premises
injuries is not based upon the principle which would justify a distinction upon the
narrow ground of private and public property; it is not sound to say that while an
employee is on public highway he is always there as a member of the public and in
nowise in the exercise of any right conferred by his contract to employment; nor is it
a complete answer to say that while he is on his employer's premises his presence

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there is by contract right, otherwise he would be a trespasser. The question of
whether or not one is a covered employee should not be resolved by the
application of the law relating to rights to enter upon lands, or by law of trespass,
licensee, invitee or otherwise.

A substantial and fair ground to justify the extension of the course of employment
beyond the premises of the employer is to extend its scope to the necessary risks
and hazards associated with the employment. These risks may or may not be on
the premises of the employer and for this reason there is no justification to
distinguish between extended risks on public highways and private pathways. In
fact it is at most a distinction without a difference. Under the better reasoned cases
the technical status as public or private is obviously of no moment or in any event in
and of itself is not conclusive.

Likewise enlightening is the following explanation of the premises rule exceptions:

We have, then a workable explanation of the exception to the premises rule: it is

not nearness, or reasonable distance, or even the identifying or surrounding areas
with the premises; it is simply that, when a court has satisfied itself that there is a
distinct "arising out of" or causal connection between the conditions under which
claimant must approach and leave the premises and the occurrence of the injury, it
may hold that the course of employment extends as far as those conditions extend.
(Larson's Workmen's Compensation Law, 1965 ed)

We now direct our attention to the cause of the employee's death: assault.

An "assault," although resulting from a deliberate act of the slayer, is considered an

"accident" within the meaning of sec. 2 of the Workmen's Compensation Act, since
the word "accident" is intended to indicate that "the act causing the injury shall be
casual or unforeseen, an act for which the injured party is not legally
responsible."12

In the cases where the assault was proven to have been work-connected,
compensation was awarded. In Nava, supra, the helmsman of a boat was engaged
in hauling the ship's cable and in coiling the cable partly occupied by a folding bed
of one of the passengers. This passenger, upon being asked, declared his
ownership of the bed. Nava expressed his intention of pushing it out of the way and
proceeded to do so. Angered by this, the passenger exchanged hot words with
Nava, and then, with a piece of wood, jabbed Nava at the pit of the stomach. At this
point, the passenger's brother ran up to Nava and stabbed him to death. The death
was adjudged compensable.

In Bohol Land Transportation Co. vs. Vda. de Mandaguit,13 the truck which
Mandaguit was driving collided with a cyclist going in the opposite direction. The

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latter turned around and immediately pursued the bus. He overtook it a few minutes
later when it stopped to take on passengers. The driver then disembarked from the
bus to wash his hands at a drugstore nearby. The cyclist followed him there and
knifed him to death. We affirmed the grant of compensation upon the finding that
the death arose out of and in the course of employment.

In Galicia vs. Dy Pac,14 the employee, Pablo Carla, was asked to work in lieu of
another employee who had been suspended from work upon request of his labor
union; while Carla was working, the suspended employee asked him to intercede
for him, but Carla refused; an altercation resulted; shortly thereafter the suspended
employee stabbed Carla to death. The death was held compensable because "the
injury sustained by the deceased was caused by an accident arising out of his
employment since the evidence is clear that the fight which resulted in the killing of
the deceased had its origin or cause in the fact that he was placed in the job
previously occupied by the assailant."

In the three cases above-cited, there was evidence as to the motive of the
assailant.

In A. P. Santos, Inc. vs. Dabacol,15 the death of an employee-driver who, while

driving a cab, was killed by an unidentified passenger, was held compensable by
the Commission. However, the question of whether the assault arose out of the
employment, was not raised on appeal to this Court.

In Batangas Transportation Company vs. Vda. de Rivera,16 that question was

raised. While the employee-driver was driving a bus, a passenger boarded it and
sat directly behind the driver. After about thirty minutes, during which the passenger
and the driver never so much as exchanged a word, the passenger shot the driver
to death and then fled. There was no competent proof as to the cause of the
assault, although there were intimations that the incident arose from a personal
grudge. The majority decision17 ruled the death compensable. The bases: (1)
Once it is proved that the employee died in the course of the employment, the legal
presumption, in the absence of substantial evidence to the contrary, is that the
claim "comes within the provisions of the compensation law" (sec. 43), in other
words, that the incident arose out of the workman's employment. (2) Doubts as to
rights to compensation are resolved in favor of the employee and his dependents.
(3) The Commissioner's declaration on the work-connection might be binding on
the Court. (4) There are employments which increase the risk of assault on the
person of the employee and it is in that sense that an injury or harm sustained by
the assaulted worker arises out of the employment, because the increased risk to
assault supplies the link or connection between the injury and the employment.
Among the jobs enumerated as increasing the risk of assault are (a) jobs having to
do with keeping the peace or guarding property; (b) jobs having to do with keeping
or carrying of money which subject to the employee to the risk of assault because

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of the increased temptation to robbery; (c) jobs which expose the employee to
direct contact with lawless and irresponsible members of the community, like that of
a bartender; and (d) work as bus driver, taxi driver or street car conductor.

It has been said that an employment may either increase risk of assault because of
its nature or be the subject-matter of a dispute leading to the assault. The first kind
of employment, the so-called "increased risk" jobs comprehend (1) jobs involving
dangerous duties, such as that of guarding the employer's property, that of carrying
or keeping money, that where the employee is exposed to lawless or irresponsible
members of the public, or that which subjects him to increased or indiscriminate
contact with the public, such as the job of a street car conductor or taxi-driver;18 (2)
jobs where the employee is placed in a dangerous environment;19 and (3) jobs of
employees whose work takes them on the highway. On the other hand, the
employment itself may be the subject-matter of a dispute leading to the assault as
where a supervisor is assaulted by workmen he has fired, or where the argument
was over the performance of work or possession of tools or the like, or where the
violence was due to labor disputes.20

In Rivera, supra, the unexplained assault on the employee was considered to have
arisen out of the employment because it occurred in the course of employment.
This Court relied on the presumption of law that in any proceeding for the
enforcement of a claim, the claim is presumed to come within the provisions of the
Act.21 According to this Court, "this statutory presumption was copied from New
York." Concerning the corresponding New York provision of law, Larson has this to
say:

In a few jurisdictions, notably New York and Massachusetts, a statutory

presumption in favor of coverage has figured in unexplained-accident cases. The
Massachusetts statute provides:

In any claim for compensation, where the employee has been killed, or is physically
or mentally unable to testify, it shall be presumed, in the absence of substantial
evidence to the contrary, that the claim comes within the provisions of this chapter,
that sufficient notice of the injury has been given, and that the injury or death was
not occasioned by the wilful intention of the employee to injure or kill himself or
another.

This provision was largely copied from the New York section on presumptions,
except that the New York act creates the presumption in all cases, not merely those
involving an employee's death or inability to testify.

The sweeping inclusiveness of this language might seem at first glance to mean
that the mere making of a claim is also the making of a prima facie case, as long as
death or injury is shown to have occurred. The New York and Massachusetts

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courts have not so interpreted these statutes, however. It seems to be necessary to
establish some kind of preliminary link with the employment before the presumption
can attach. Otherwise, the claimant widow would have merely to say, "My husband,
who was one of your employee, has died, and I therefore claim death benefits,"
whereupon the affirmative burden would devolve upon the employer to prove that
there was no connection between the death and the environment.

It is not yet entirely clear what initial demonstration of employment-connection will

give the presumption a foothold. Apparently, the idea is to rule out cases in which
claimant can show neither that the injury occurred in the course of employment nor
that it arose out of it, as where he contracted a disease but has no evidence to
show where he got it. If there is evidence that the injury occurred in the course of
employment, the presumption will usually supply the "arising-out-of-employment"
factor." Larson's Workmen Compensation Law (1965) vol. 1, pp. 123-124.

We also quote from the decision of the Court of Appeals of New York in Daus vs.
Gunderman & Sons:22

The statute is not intended to relieve completely an employee from the burden of
showing that accidental injuries suffered by him actually were sustained in the
course of his employment. "It is not the law that mere proof of an accident, without
other evidence, creates the presumption under section 21 of the Workmen's
Compensation Law (Consol. Law, c. 67) that the accident arose out of and in the
course of the employment. On the contrary, it has been frequently held, directly and
indirectly, that there must be some evidence from which the conclusion can be
drawn that the injuries did arise out of and in the course of the employment." Proof
of the accident will give rise to the statutory presumption only where some
connection appears between the accident and the employment.

Likewise of relevance is the following treatise:

The discussion of the coverage formula, "arising out of and in the course of
employment," was opened with the suggestion that, while "course" and "arising"
were put under separate headings for convenience, some interplay between the
two factors should be observed in the various categories discussed.

A few examples may now be reviewed to show that the two tests, in practice, have
not been kept in air-tight compartments, but have to some extent merged into a
single concept of work-connection. One is almost tempted to formulate a sort of
quantum theory of work-connection: that a certain minimum quantum of work-
connection must be shown, and if the "course" quantity is very small, but the
"arising" quantity is large, the quantum will add up to the necessary minimum, as it
will also when the "arising" quantity is very small but the "course" quantity is
relatively large.

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But if both the "course" and "arising" quantities are small, the minimum quantum
will not be met.

As an example of the first, a strong "arising" factor but weak "course" factor, one
may cite the cases in which recoveries have been allowed off the employment
premises, outside business hours, when an employee going to or coming from work
is injured by a hazard distinctly traceable to the employment, such as a traffic jam
overflowing from the employment premises, or a rock flying through the air from a
blast on the premises. Here, by normal course of employment standards, there
would be no award, since the employee was not on the premises while coming or
going. Yet the unmistakable character of the causal relation of the injury to the
employment has been sufficient to make up for the weakness of the "course" factor.
Another example of the same kind of balancing-out is seen in the line of cases
dealing with injury to travelling men or loggers while sleeping in hotels or
bunkhouses. It was shown in the analysis of these cases that, although the
"course" factor is on the borderline when the employee is sound asleep at the time
of injury, a strong causal relation of the injury to the conditions of employment — as
where a fellow-logger runs amok, or a straw falls into the bunkhouse-inmate's
throat from the mattress above, or the employee is trapped in a burning hotel — will
boost the case over the line to success; while a weak causal connection, as where
the salesman merely slips in a hotel bath, coupled with a weak "course" factor due
to the absence of any direct service performed for the employer at the time, will
under present decisions add up to a quantum of work-connection too small to
support an award. It was also shown that when the "course" element is
strengthened by the fact that the employee is at all times on call, the range of
compensable sources of injury is broader than when the employee, although living
on the premises is not on call.

A somewhat similar balancing-out process is seen in the holding that a borderline

course-of-employment activity like seeking personal comfort or going to and from
work falls short of compensability if the method adopted is unusual, unreasonable
and dangerous, while no such restriction applies to the direct performance of the
work.

As an example of the reverse situation, a strong "course" element and a weak

"arising" element; one may recall the "positional" cases discussed in section 10, as
well as the unexplained-fall and other "neutral-cause" cases. Here the course of
employment test is satisfied beyond the slightest doubt: the employee is in the
midst of performing the active duties of his job. But the causal connection is very
weak, since the source of the injury — whether a stray bullet, a wandering lunatic,
and unexplained fall or death, or a mistaken assault by a stranger — is not
distinctly associated with employment conditions as such, and is tied to the
employment only by the argument that the injury would not have occurred to this
employee but for the obligation of the employment which placed him in the position

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to be hurt. Yet, since the "course" element is so strong, awards are becoming
increasingly common on these facts.

Incidentally, it may be observed that this "quantum" idea forms a useful yardstick
for measuring just how generous a court has become in expanding compensation
coverage; for if a court makes an award when a case, by the above standards, is
weak both on course of employment and on causal connection, one can conclude
that the court is capable of giving the act a broad construction. Thus, an award was
made in Puffin v. General Electric, where the course element was weak (rest
period) and the causal element was weak (setting fire to own sweater while
smoking). Both factors were likewise very weak in O'Leary v. Brown Pacific-Maxon
Inc., where the course of employment consisted of a recreation period interrupted
by a rescue of a stranger, and the arising factor consisted of drowning in a channel
where decedent was prohibited from going. And, in Martin v. Plaut, the course of
employment factor was weak (a cook dressing in the morning) and the causal
factor was also weak (an unexplained fall); yet an award was made in New York.

But another New York case shows that the simultaneous weakness of course and
arising factors may reach the point where the requisite quantum is not found. In
Shultz v. Nation Associates, compensation was denied to an employee who while
combing her hair preparatory to going to lunch negligently struck her eye with the
comb. Here we see thinness on all fronts: as to course of employment time factor,
we have a lunch period; as to the course of employment activity factor, we have
care of personal appearance; and as to the causal factor, we have negligence of
the employee. Each weakness standing alone — lunch period, care of appearance,
negligence — would not be fatal; there are many awards in which one or another of
these is present. But when all are present, while an award is not impossible and
could be defended on a point by point basis, it cannot be relied upon in most
jurisdictions by the prudent lawyer. Larson's Workmen's Compensation Law 1965
ed. Vol. 1, pp. 452.97 to 452.100.

In resume:

1. Workmen's compensation is granted if the injuries result from an accident which

arise out of and in the course of employment.

2. Both the "arising" factor and the "course" factor must be present. If one factor is
weak and the other is strong, the injury is compensable, but not where both factors
are weak. Ultimately, the question is whether the accident is work-connected.

3. In a proceeding for the enforcement of a claim, the same is presumed to come

within the provisions of the Workmen's Compensation Act. But a preliminary link
must first be shown to exist between the injury and the employment. Thus if the

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injury occurred in the course of employment, it is presumed to have arisen out of
the employment.

4. The "course" factor applies to time, place and circumstances. This factor is
present if the injury takes place within the period of employment, at a place where
the employee may be, and while he is fulfilling his duties or is engaged in doing
something incidental thereto.

5. The rule is that an injury sustained while the employee goes to or comes from his
place of work, is not of the employment.

6. The exception to the rule is an injury sustained off the employee's premises, but
while in close proximity thereto and while using a customary means of ingress and
egress. The reason for extending the scope of "course of employment" to off-
premises injuries is that there is a causal connection between the work and the
hazard.

7. An "assault" may be considered an "accident" within the meaning of the

Workmen's Compensation Act. The employment may either increase risk of assault
because of its nature or be the subject-matter of a dispute leading to the assault.

From the milestones, we now proceed to take our bearings in the case at bar,
having in mind always that no cover-all formula can be spelled out with specificity,
that the particular facts and circumstances of each case must be inquired into, and
that in any perceptive inquiry, the question as to where the line should be drawn
beyond which the liability of the employer cannot continue has been held to be
usually one of fact.

We shall first dwell on the question of ownership of the private road where Pablo
was killed. In granting compensation, the Commission said that "the road where the
deceased was shot was of private ownership, was called the IDECO road, and led
straight to the main IDECO gate, thus raising the reasonable assumption that it
belonged" to the IDECO. The Commission reasoned out that "even if the ownership
of the road were open to question, there was no doubt that its private character was
obviously exploited by the respondent for the purpose of its own business to such
an extent as to make it to all intents and purposes an extension of its premises," so
that the "shooting of the deceased may be considered to have taken place on the
premises, and therefore within the employment;" and that "while respondent
allowed its name to be used in connection with the private road for the ingress and
egress of the employees it did not apparently take the necessary precaution to
make it safe for its employees by employing security guards."

But the IDECO denies ownership of the road. In its memorandum filed with the
Regional Office, IDECO averred that Pablo's death did not originate from his work

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as to time, place and circumstances. This, in effect, is a denial of ownership of the
road. The decision of the Regional Office does not state that the road belongs to
the IDECO. All that it says is that Pablo was shot "barely two minutes after he was
dismissed from work and while walking along the IDECO road about twenty (20)
meters from the gate." In its "motion for reconsideration and/or review," the IDECO
emphasized that "the place where the incident happened was a public road, not
less than twenty (20) meters away from the main gate of the compound, and
therefore not proximate to or in the immediate vicinity of the place of work." Again,
the ownership of the road was implicitly denied. And in its "motion for
reconsideration and/or appeal to the Commission en banc," the IDECO alleged
outright that the "road where the incident took place, although of private ownership,
does not belong to IDECO. There is absolutely no evidence on record that shows
IDECO owns the road." If the road were owned by the IDECO, there would have
been no question that the assault arose "in the course of employment."23 But if it
did indeed own the road, then the IDECO would have fenced it, and place its main
gate at the other end of the road where it meets the public highway.

But while the IDECO does not own the private road, it cannot be denied that it was
using the same as the principal means of ingress and egress. The private road
leads directly to its main gate.24 Its right to use the road must then perforce
proceed from either an easement of right of way or a lease. Its right, therefore, is
either a legal one or a contractual one. In either case the IDECO should logically
and properly be charged with security control of the road. The IDECO owed its
employees a safe passage to its premises. In compliance with such duty, the
IDECO should have seen to it not only that road was properly paved and did not
have holes or ditches, but should also have instituted measures for the proper
policing of the immediate area. The point where Pablo was shot was barely twenty
meters away from the main IDECO gate, certainly nearer than a stone's throw
therefrom. The spot is immediately proximate to the IDECO's premises.
Considering this fact, and the further facts that Pablo had just finished overtime
work at the time, and was killed barely two minutes after dismissal from work, the
Ampil case is squarely applicable here. We may say, as we did in Ampil, that the
place where the employee was injured being "immediately proximate to his place of
work, the accident in question must be deemed to have occurred within the zone of
his employment and therefore arose out of and in the course thereof." Our principal
question is whether the injury was sustained in the course of employment. We find
that it was, and so conclude that the assault arose out of the employment, even
though the said assault is unexplained.

American jurisprudence supports this view.

In Bountiful Brick Company vs. Giles,25 the U.S. Supreme Court ruled:

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Employment includes both only the actual doing of the work, but a reasonable
margin of time and space necessary to be used in passing to and from the place
where the work is to be done. If the employee to be injured while passing, with the
express or implied consent of the employer, to or from his work by a way over the
employer's premises, or over those of another in such proximity and relation as to
be in practical effect a part of the employer's premises, the injury is one arising out
of and in the course of employment as much as though it had happened while the
employee was engaged in his work at the place of its performance. In other words,
the employment may begin in point of time before the work is entered upon and in
point of space before the place where the work is to be done is reached. Probably,
as a general rule, employment may be said to begin when the employee reaches
the entrance to the employer's premises where the work is to be done; but it is
clear that in some cases the rule extends to include adjacent premises used by the
employee as a means of ingress and egress with the express or implied consent of
the employer.

The above ruling is on all fours with our facts. Two minutes from dismissal and
twenty meters from the main IDECO gate are "a reasonable margin of time and
space necessary to be used in passing to and from" the IDECO's premises. The
IDECO employees used the private road with its consent, express or implied.
Twenty meters on that road from the main gate is in close proximity to the IDECO's
premises. It follows that Pablo's death was in the course of employment.

In Carter vs. Lanzetta,26 it was held that "such statutes envision extension of
coverage to employees from the time they reach the employer's premises until they
depart therefrom and that hours of service include a period when this might be
accomplished within a reasonable interval;" and that "under exceptional
circumstances, a continuance of the course of employment may be extended by
allowing the employee a reasonable time not only to enter or leave the premises
but also to surmount certain hazards adjacent thereto."

The private road led directly to the main IDECO gate. From this description, it
would appear that the road is a dead-end street. In Singer vs. Rich Marine Sales,27
it was held that, where the employee, while returning to work at the end of the lunch
period, fell at the curb of the sidewalk immediately adjacent to the employer's
premises and one other located thereon, and the general public used the street
only in connection with those premises, and the employer actually stored boats on
the sidewalk, the sidewalk was within the precincts of employment. In that case
there were even two business establishments on the dead-end street. Here, it is
exclusively the IDECO premises which appear to be at the end of the private road.

We find in Jean vs. Chrysler Corporation28 a meaningful statement of the

obligation of the employer to its employees: "That the employer owes, so to speak,

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a duty of 'safe passage' to an employee to the point where he can reach the proper
arrival or departure from his work seems without question."

We next quote extensively from Kelty vs. Travellers Insurance Company:29

The rule has been repeatedly announced in Texas that an injury received by an
employee while using the public streets and highways in going to or returning from
the place of employment is not compensable, the rationale of the rule being that in
most instances such an injury is suffered as a consequence of risk and hazards to
which all members of the travelling public are subject rather than risk and hazards
having to do with and originating in the work or business of the employer....

Another exception, however, which is applicable is found in the so-called "access"

cases. In these cases a workman who has been injured at a plane intended by the
employer for use as a means of ingress or egress to and from the actual place of
the employee's work has been held to be in the course of his employment. The
courts have said that these access areas are so closely related to the employer's
premises as to be fairly treated as a part of the employer's premises. We shall
discuss the principal authorities dealing with this exception to the general rule.

The leading cases in Texas dealing with the "access" exception, and one which we
think is controlling of this appeal, is Lumberman's Reciprocal Ass'n v. Behnken, 112
Tex. 103, 246 S.W. 72, 28 A.L.R. 1402. In that case the employee was employed
by Hartburg Lumber Company, which company operated and owned a sawmill in
Hartburg, Texas, which was a lumber town, consisting solely of the employer's
facilities. A railroad track ran through the town and a part of the lumber company's
facilities was situated on either side of the right-of-way. A public road ran parallel to
the railroad tracks which led to the various buildings on the property of the lumber
company. This crossing was used by any member of the public desiring to go to
any part of the lumber company facilities. On the day in question the decedent quit
work at noon, went home for lunch and while returning to the lumber company plant
for the purpose of resuming his employment, was struck and killed by a train at the
crossing in question. The insurance company contended (as it does here) that the
decedent's death did not originate in the work or business of his employer and that
at the time of his fatal injuries he was not in or about the furtherance of the affairs
or business of his employer. The Supreme Court, in an extensive opinion, reviewed
the authorities from other states and especially Latter's Case 238 Mass. 326, 130
N. E. 637, 638, and arrived at the conclusion that the injury and death under such
circumstances were compensable under the Texas Act. The court held that the
railroad crossing bore so intimate a relation to the lumber company's premises that
it could hardly be treated otherwise than as a part of the premises. The Court
pointed out that the lumber company had rights in and to the crossing which was
used in connection with the lumber company's business, whether by employees or

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by members of the public. In announcing the "access" doctrine Justice Greenwood
said:

Was Behnken engaged in or about the furtherance of the affairs or business of his
employer when he received the injury causing his death? He was upon the crossing
provided as the means of access to his work solely because he was an employee.
He encountered the dangers incident to use of the crossing in order that he might
perform the duties imposed by his contract of service. Without subjecting himself to
such dangers he could not do what was required of him in the conduct of the
lumber company's business. He had reached a place provided and used only as an
adjunct to that business, and was injured from a risk created by the conditions
under which the business was carried on. To hold that he was not acting in
furtherance of the affairs or business of the lumber company would be to give a
strict interpretation to this remedial statute, which should be liberally construed with
a view to accomplish its purpose and to promote justice.

In Texas Employer's Ins. Ass'n v. Anderson, Tex. Civ. App., 125 S. W. 2d 674, wr.
ref., this court followed the rule announced in Behnken, supra. In that case the
employee was killed while crossing the railroad track near his place of employment.
In discussing the question of the situs of the injury Justice Looney said:

Its use as a means of ingress to and exit from his place of work not only conduced
his safety and convenience, but contributed to the promptness and efficiency with
which he was enabled to discharge the duties owing his employer; hence the
reason and necessity for his presence upon the railroad track (that portion of the
pathway leading over the railroad right of way) when injured, in our opinion, had to
do with, originated in and grew out of the work of the employer; and that, the injury
received at the time, place and under the circumstances, necessarily was in
furtherance of the affairs or business of the employer.

Again, in Texas Employers' Ins. Ass'n v. Boecker, Tex. Civ. App. 53 S. W. 2d 327,
err. ref., this court had occasion to follow the "access" doctrine. In that case Chief
Justice Jones quoted from the Supreme Court of the United States in the case of
Bountiful Brisk Company, et al. v. Giles, 276 U.S. 154, 48 S. Ct. 221, 72 L. Ed. 507,
66 A. L. R. 1402, as follows:

An employment includes not only the actual doing of the work, but a reasonable
margin of time and space necessary to be used in passing to and from the place
where the work is to be done. If the employee be injured while passing, with the
express or implied consent of the employer, to or from his work by a way over the
employer's premises, or over those of another in such proximity and relation as to
be in practical effect a part of the employer's premises, the injury is one arising out
of and in the course of the employment as much as though it had happened while
the employee was engaged in his work at the place of its performance. In other

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words, the employment may begin in point of time before the work is entered upon
and in point of space before the place where the work is to be done is reached.

The ruling enunciated above is applicable in the case at bar. That part of the road
where Pablo was killed is in very close proximity to the employer's premises. It is an
"access area" "so clearly related to the employer's premises as to be fairly treated
as a part of the employer's premises." That portion of the road bears "so intimate a
relation" to the company's premises. It is the chief means of entering the IDECO
premises, either for the public or for its employees. The IDECO uses it extensively
in pursuit of its business. It has rights of passage over the road, either legal, if by
virtue of easement, or contractual, if by reason of lease. Pablo was using the road
as a means of access to his work solely because he was an employee. For this
reason, the IDECO was under obligation to keep the place safe for its employees.
Safe, that is, against dangers that the employees might encounter therein, one of
these dangers being assault by third persons. Having failed to take the proper
security measures over the said area which it controls, the IDECO is liable for the
injuries suffered by Pablo resulting in his death.

As therefore stated, the assault on Pablo is unexplained. The murderer was himself
killed before he could be brought to trial. It is true there is authority for the
statement that before the "proximity" rule may be applied it must first be shown that
there is a causal connection between the employment and the hazard which
resulted in the injury.30 The following more modern view was expressed in Lewis
Wood Preserving Company vs. Jones:31

While some earlier cases seem to indicate that the causative danger must be
peculiar to the work and not common to the neighborhood for the injuries to arise
out of and in the course of the employment (see Maryland Casualty Co. v. Peek, 36
Ga. App. 557 [137 S.E. 121]; Hartford Accident and Indemnity Co. v. Cox, 61 Ga.
App. 420, 6 S.E. 2d 189), later cases have been somewhat more liberal, saying
that, "to be compensable, injuries do not have to arise from something peculiar to
the employment." Fidelity & Casualty Co. of N.Y. v. Bardon, 79 Ga. App. 260, 262,
54 S.E. 2d 443, 444. "Where the duties of an employee entail his presence (at a
place and a time) the claim for an injury there occurring is not to be barred because
it results from a risk common to all others ... unless it is also common to the general
public without regard to such conditions, and independently of place, employment,
or pursuit." New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 118 S.E.
786, cited in Globe Indemnity Co. v. MacKendree, 39 Ga. App. 58, 146 S.E. 46, 47;
McKiney v. Reynolds & Manley Lumber Co., 79 Ga. App. 826, 829, 54 S.E. 2d 471,
473.

But even without the foregoing pronouncement, the employer should still be held
liable in view of our conclusion that that portion of the road where Pablo was killed,
because of its proximity, should be considered part of the IDECO's premises.

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Hence, the injury was in the course of employment, and there automatically arises
the presumption — invoked in Rivera — that the injury by assault arose out of the
employment, i. e., there is a causal relation between the assault and the
employment.

We do say here that the circumstances of time, two minutes after dismissal from
overtime work, and space, twenty meters from the employer's main gate, bring
Pablo's death within the scope of the course factor. But it may logically be asked:
Suppose it were three minutes after and thirty meters from, or five minutes after
and fifty meters from, would the "proximity" rule still apply? In answer, we need but
quote that portion of the decision in Jean vs. Chrysler Corporation, supra, which
answered a question arising from an ingenious hypothetical question put forth by
the defendant therein:

We could, of course, say "this is not the case before us" and utilize the old saw,
"that which is not before us we do not decide." Instead, we prefer to utilize the
considerably older law: "Sufficient unto the day is the evil thereof" (Matthew 1:34),
appending, however, this admonition: no statute is static; it must remain constantly
viable to meet new challenges placed to it. Recovery in a proper case should not
be suppressed because of a conjectural posture which may never arise and which
if it does, will be decided in the light of then existing law.

Since the Workmen's Compensation Act is basically a social legislation designed to

afford relief to workmen, it must be liberally construed to attain the purpose for
which it was enacted.32 Liberally construed, sec. 2 of the Act comprehends Pablo's
death. The Commission did not err in granting compensation.

ACCORDINGLY, the decision appealed from is affirmed, at petitioner's cost.

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[2]

G.R. No. 128524. April 20, 1999.*

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS), petitioner, vs. THE
HONORABLE COURT OF APPEALS and FELONILA ALEGRE, respondents.

Labor Law; Employees’ Compensation; Employees’ Compensation

Commission; Guidelines of the ECC with respect to claims for death benefits: (a) that the
employee must be at the place where his work requires him to be; (b) that the employee
must have been performing his official functions; and (c) that if the injury is sustained
elsewhere, the employee must have been executing an order for the employer.—As for
P/Sgt. Alvaran in the Employees’ Compensation Commission case, although he was not
given any directive or permission by a superior officer to be at the Mandaluyong Police
Station, his presence there was nonetheless justified by the peacekeeping nature of the
matter he was attending to at the time that he was attacked and shot to death, that is,
bringing his son to the police station to answer for a crime, a basic duty which any
policeman is expected and ought to perform.

Same;  Same; Same; Administrative Law; Civil Service Law; The 24-hour duty

doctrine should not be sweepingly applied to all acts and circumstances causing the death
of a police officer but only to those which, although not on official line of duty, are
nonetheless basically police service in character.—Taking together jurisprudence and the
pertinent guidelines of the ECC with respect to claims for death benefits, namely: (a) that
the employee must be at the place where his work requires him to be; (b) that the employee
must have been performing his official functions; and (c) that if the injury is sustained
elsewhere, the employee must have been executing an order for the employer, it is not
difficult to understand then why SPO2 Alegre’s widow should be denied the claims
otherwise due her. Obviously, the matter SPO2 Alegre was attending to at the time he met
his death, that of ferrying passengers for a fee, was intrinsically private and unofficial in
nature proceeding as it did from no particular directive or permission of his superior officer.
In the absence of such prior authority as in the cases of Hinoguin and Nitura, or
peacekeeping nature of the act attended to by the policeman at the time he died even
without the explicit permission or directive of a
superior officer, as in the case of P/Sgt. Alvaran, there is no justification for holding that
SPO2 Alegre met the requisites set forth in the ECC guidelines. That he may be called upon
at any time to render police work as he is considered to be on a round-the-clock duty and
was not on an approved vacation leave will not change the conclusion arrived at considering
that he was not placed in a situation where he was required to exercise his authority and
duty as a policeman. In fact, he was refusing to render one pointing out that he already
complied with the duty detail. At any rate, the 24-hour duty doctrine, as applied to
policemen and soldiers, serves more as an after-the-fact validation of their acts to place
them within the scope of the guidelines rather than a blanket license to benefit them in all
situations that may give rise to their deaths. In other words, the 24-hour duty doctrine

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should not be sweepingly applied to all acts and circumstances causing the death of a police
officer but only to those which, although not on official line of duty, are nonetheless
basically police service in character.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

     Legal Services Group for petitioner.
     Ellen D. Veza for private respondent.

ROMERO, J.:

May a moonlighting policeman's death be considered compensable? This is the

crux of the controversy now at bar.

The records 1 disclose that private respondent Felonila Alegre's deceased

husband, SPO2 Florencio A.. Alegre, was a police officer assigned to the Philippine
National Police station in the town of Vigan, Ilocos Sur. On that fateful day of
December 6, 1994, he was driving his tricycle and ferrying passengers within the
vicinity of Imelda Commercial Complex when SPO4 Alejandro Tenorio, Jr.,
Team/Desk Officer of the Police Assistance Center located at said complex,
confronted him regarding his tour of duty. SPO2 Alegre allegedly snubbed SPO4
Tenorio and even directed curse words upon the latter. A verbal tussle then ensued
between the two which led to the fatal shooting of the deceased police
officer.1âwphi1.nêt

On account of her husband's death, private respondent seasonably filed a claim for
death benefits with petitioner Government Service Insurance System (GSIS)
pursuant to Presidential Decree No. 626. In its decision on August 7, 1995, the
GSIS, however, denied the claim on the ground that at the time of SPO2 Alegre's
death, he was performing a personal activity which was not work-connected.
Subsequent appeal to the Employees' Compensation Commission (ECC) proved
futile as said body, in a decision dated May 9, 1996, merely affirmed the ruling of
the GSIS.

Private respondent finally obtained a favorable ruling in the Court of Appeals when
on February 28, 1997, the appellate court reversed 2 the ECC's decision and ruled
that SPO2 Alegre's death was work-connected and, therefore, compensable. Citing
Nitura v. Employees' Compensation Commission 3 and Employees' Compensation
Commission v. Court of Appeals, 4 the appellate court explained the conclusion
arrived at thus:

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[T]he Supreme Court held that the concept of a "workplace" cannot always be
literally applied to a person in active duty status, as if he were a machine operator
or a worker in an assembly line in a factor or a clerk in a particular fixed office.

It is our considered view that, as applied to a peace officer, his work place is not
confined to the police precinct or station but to any place where his services, as a
lawman, to maintain place and security, are required.

At the time of his death, Alegre was driving a tricycle at the northeastern part of the
Imelda Commercial Complex where the police assistance center is located. There
can be no dispute therefore that he met his death literally in his place of work.

It is true that the deceased was driving his tricycle, with passengers aboard, when
he was accosted by another police officer. This would lend some semblance of
viability to the argument that he was not in the performance of official duty at the
time.

However, the argument, though initially plausible, overlooks the fact that policemen,
by the nature of their functions, are deemed to be on around-the-clock duty.

Aggrieved, GSIS comes to us on petition for review on certiorari reiterating its

position that SPO2 Alegre's death lacks the requisite element of compensability
which is, that the activity being performed at the time of death must be work-
connected.

We grant the petition.

As stated at the outset, the sole issue for the Court's resolution is whether the
death of SPO2 Alegre is compensable pursuant to the applicable laws and
regulations.

Under the pertinent guidelines of the ECC on compensability, it is provided that "for
the injury and the resulting disability or death to be compensable, the injury must be
the result of an employment accident satisfying all of the following conditions:

(1) The employee must have been injured at the place where his work requires him
to be;

(2) The employee must have been performing his official functions; and

(3) If the injury is sustained elsewhere, the employee must have been executing an
order for the employer. 5

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Actually, jurisprudence is rather scant with respect to the above rules' application in
the case of police officers. Nevertheless, owing to the similarity of functions, that is,
to keep peace and order, and the risks assumed, the Court has treated police
officers similar to members of the Armed Forces of the Philippines with regard to
the compensability of their deaths. Thus, echoing Hinoguin v. Employees'
Compensation Commission, 6 a case involving a soldier who was accidentally fired
at by a fellow soldier, we held in Employees' Compensation Commission v. Court of
Appeals, 7 that "members of the national police are by the nature of their functions
technically on duty 24 hours a day" because "policemen are subject to call at any
time and may be asked by their superiors or by any distressed citizen to assist in
maintaining the peace and security of the community."

Upon examination of the Court of Appeals' reasoning, we believe that the appellate
court committed reversible error in applying the precepts enunciated in the cited
cases. While we agree that policemen, like soldiers, are at the beck and call of
public duty as peace officers and technically on duty round-the-clock, the same
does not justify the grant of compensation benefits for the death of SPO2 Alegre
based on the facts disclosed by the records. For clarity, a review of the cases
relevant to the matter at hand is in order.

In Hinoguin, the deceased Philippine Army soldier, Sgt. Limec Hinoguin, together
with two other members of his detachment, sought and were orally granted
permission by the commanding officer of their company to leave their station in
Carranglan, Nueva Ecija to go on overnight pass to Aritao, Nueva Vizcaya. As they
were returning to their headquarters, one of his companions, not knowing that his
M-16 rifle was on "semi-automatic" mode, accidentally pulled the trigger and shot
Sgt. Hinoguin who then died as a result thereof. Ruling for the grant of death
compensation benefits, this Court held:

The concept of a "workplace" referred to in Ground 1, for instance, cannot always

be literally applied to a soldier on active duty status, as if he were a machine
operator or a worker in assembly line in a factory or a clerk in a particular fixed
office. Obviously, a soldier must go where his company is stationed. In the instant
case, Aritao, Nueva Vizcaya was not, of course, Carranglan, Nueva Ecija. Aritao
being approximately 1-1/2 hours away from the latter by public transportation. But
Sgt. Hinoguin, Cpl. Clavo and Dft. Alibuyog had permission from their Commanding
Officer to proceed to Aritao, and it appears to us that a place which soldiers have
secured lawful permission to be at cannot be very different, legally speaking, from a
place where they are required to go by their commanding officer. We note that the
three (3) soldiers were on an overnight pass which, notably, they did not utilize in
full. They were not on vacation leave. Moreover, they were required or authorized
to carry their firearms with which presumably they were to defend themselves if
NPA elements happened to attack them while en route to and from Aritao or with
which to attack and seek to capture such NPA elements as they might encounter.

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Indeed, if the three (3) soldiers had in fact encountered NPAs while on their way to
or from Aritao and been fired upon by them and if Sgt. Hinoguin had been killed by
an NPA bullet, we do not believe that respondent GSIS would have had any
difficulty in holding the death a compensable one.

Then came the case of Nitura, likewise involving a member of the Philippine Army,
Pfc. Regino S. Natura, who was assigned at Basagan, Katipunan, Zamboanga del
Norte. At the time he met his death, he was instructed by his battalion commander
to check on several personnel of his command post who were then attending a
dance party in Barangay San Jose, Dipolog City. But on his way back to the camp,
he passed, crossed and fell from hanging wooden bridge which accident caused
his death. Reversing the ECC which earlier denied death benefits to the
deceased's widow, the Court ruled:

A soldier must go where his company is stationed. In the case at bar, Pfc. Nitura's
station was at Basagan, Katipunan, Zamboanga del Norte. But then his presence at
the site of the accident was with the permission of his superior officer having been
directed to go to Barangay San Jose, Dipolog City: In carrying out said directive, he
had to pass by the hanging bridge which connects the two places. As held in the
Hinoguin case (supra.), a place where soldiers have secured lawful permission to
be at cannot be very different, legally speaking, from a place where they are
required to go by their commanding officer.

As to the question of whether or not he was performing an official function at the

time of the incident, it has been held that a soldier on active duty status is really on
a 24 hours a day of official duty status and is subject to military discipline and
military law 24 hours a day. He is subject to call and to the orders of his superior
officers at all times, seven (7) days a week, except, of course, when he is on
vacation leave status. Thus, a soldier should be presumed to be on official duty
unless he is shown to have clearly and unequivocally put aside that status or
condition temporarily by going on approved vacation leave.

The more recent case which was cited by the appellate court in support of its
decision is Employees' Compensation Commission v. Court of Appeals. This time,
the claim for death compensation benefits was made in behalf of a deceased police
officer, P/Sgt. Wilfredo Alvaran, who, at the time of his death, was a member of the
Mandaluyong Police Station but assigned to the Pasig Provincial Jail. Findings
showed that the deceased brought his son to the Mandaluyong Police Station for
interview because the latter was involved in a stabbing incident. While in front of
the said station, the deceased was approached by another policeman and shot him
to death. Both the GSIS and the ECC denied the claim by the deceased's widow on
the ground that Sgt. Alvaran was plainly acting as a father to his son and that he
was in a place where he was not required to be. The Court of Appeals reversed
said denial which decision was affirmed by this Court, declaring that:

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But for clarity's sake and as a guide for future cases, we hereby hold that members
of the national police, like P/Sgt. Alvaran, are by the nature of their functions
technically on duty 24 hours a day. Except when they are on vacation leave,
policemen are subject to call at anytime and may be asked by their superiors or by
any distressed citizen to assist in maintaining the peace and security of the
community.

We hold that by analogy and for purposes of granting compensation under P.D. No.
626, as amended, policemen should be treated in the same manner as soldiers.

While it is true that, "geographically" speaking, P/Sgt Alvaran was not actually at his
assigned post at the Pasig Provincial Jail when he was attacked and killed, it could
not also be denied that in bringing his son — as a suspect in a case — to the police
station for questioning to shed light on a stabbing incident, he was not merely
acting as father but as a peace officer.

From the foregoing cases, it can be gleaned that the Court did not justify its grant of
death benefits merely on account of the rule that soldiers or policemen, as the case
may be, are virtually working round-the-clock. Note that the Court likewise
attempted in each case to find a reasonable nexus between the absence of the
deceased from his assigned place of work and the incident that led to his death.

In Hinoguin, the connection between his absence from the camp where he was
assigned and the place where he was accidentally shot was the permission duly
given to him and his companions by the camp commander to go on overnight pass.
According to the Court, "a place which soldiers have secured lawful permission
cannot be very different, legally speaking, from a place where they are required to
go by their commanding officer" and hence, the deceased is to be considered as
still in the performance of his official functions.

The same thing can be sad of Nitura where the deceased had to go outside of his
station on permission and directive by his superior officer to check on several
personnel of his command who were then attending a dance party.

As for P/Sgt. Alvaran in the Employees' Compensation Commission case, although

he was not given any directive or permission by a superior officer to be at the
Mandaluyong Police Station, his presence there was nonetheless justified by the
peacekeeping nature of the matter he was attending to at the time that he was
attacked and shot to death, that is, bringing his son to the police station to answer
for a crime, a basic duty which any policeman is expected and ought to perform.

Taking together jurisprudence and the pertinent guidelines of the ECC with respect
to claims for death benefits, namely: (a) that the employee must be at the place
where his work requires him to be; (b) that the employee must have been

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performing his official functions; and (c) that if the injury is sustained elsewhere, the
employee must have been executing an order for the employer, it is not difficult to
understand then why SPO2 Alegre's widow should be denied the claims otherwise
due her. Obviously, the matter SPO2 Alegre was attending to at the time he met his
death, that of ferrying passengers for a fee, was intrinsically private and unofficial in
nature proceeding as it did from no particular directive or permission of his superior
officer. In the absence of such prior authority as in the cases of Hinoguin and
Nitura, or peacekeeping nature of the act attended to by the policeman at the time
he died even without the explicit permission or directive of a superior officer, as in
the case of P/Sgt. Alvaran, there is no justification for holding that SPO2 Alegre met
the requisites set forth in the ECC guidelines. That he may be called upon at any
time to render police work as he is considered to be on a round-the-clock duty and
was not on an approved vacation leave will not change the conclusion arrived at
considering that he was not placed in a situation where he was required to exercise
his authority and duty as a policeman. In fact, he was refusing to render one
pointing out that he had already complied with the duty detail. 8 At any rate, the 24-
hour duty doctrine, as applied to policemen and soldiers, serves more as an after-
the-fact validation of their acts to place them within the scope of the guidelines
rather than a blanket license to benefit them in all situations that may give rise to
their deaths. In other words, the 24-hour duty doctrine should not be sweepingly
applied to all acts and circumstances causing the death of a police officer but only
to those which, although not on official line of duty, are nonetheless basically police
service in character.

WHEREFORE, the petition is hereby GRANTED. The assailed decision of the

Court of Appeals in CA-G.R. SP No. 42003 dated February 28, 1997, is hereby
REVERSED and SET ASIDE.1âwphi1.nêt

No pronouncement as to costs.

SO ORDERED.

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[3]
G.R. No. 90204. May 11, 1990.*
MANUEL BELARMINO, petitioner, vs. EMPLOYEES’ COMPENSATION
COMMISSION and GOVERNMENT SERVICE INSURANCE SYSTEM, respondents.

Employees’ Compensation Commission; Government Service Insurance

System; Benefits;  Septicemia post partum is admittedly not listed as an occupational
disease; Oania Belarmino’s death from that ailment is compensable because an
employment accident and the conditions of her employment contributed to its development.
—The illness, septicemia post partum, which resulted in the death of Oania Belarmino, is
admittedly not listed as an occupational disease in her particular line of work as a classroom
teacher. However, as pointed out in the petition, her death from that ailment is compensable
because an employment accident and the conditions of her employment contributed to its
development. The condition of the classroom floor caused Mrs. Belarmino to slip and fall
and suffer injury as a result. The fall precipitated the onset of recurrent abdominal pains
which culminated in the premature termination of her pregnancy with tragic consequences
to her. Her fall on the classroom floor brought about her premature delivery which caused
the development of post partum septicemia which resulted in death. Her fall therefore was
the proximate or responsible cause that set in motion an unbroken chain of events, leading
to her demise.

Same;  Same; Same; Same; The right to compensation extends to disability due to

disease supervening upon and proximately and naturally resulting from a compensable
injury.—Thus in Enriquez v. WCC, 93 SCRA 366, 372, this Court ruled: “x x x. Verily, the
right to compensation extends to disability due to disease supervening upon and
proximately and naturally resulting from a compensable injury (82 Am. Jur. 132). Where
the primary injury is shown to have arisen in the course of employment, every natural
consequence that flows from the injury likewise arises out of the employment, unless it is
the result of an independent intervening cause attributable to claimant’s own negligence or
misconduct (I Larson Workmen’s Compensation Law 3-279 [1972]). Simply stated, all the
medical consequences and sequels that flow from the primary injury are compensable.
(Ibid.)”

Same;  Same; Same; Same; Same;  Mrs. Belarmino’s fall was the primary injury that
arose in the course of her employment as a classroom teacher.—Mrs. Belarmino’s fall was
the primary injury that arose in the course of her employment as a classroom teacher, hence,
all the medical consequences flowing from it: her recurrent abdominal pains, the premature
delivery of her baby, her septicemia post partum, and death, are compensable.

Same;  Same; Same; Same; Argument that the cause of decedent’s post partum

septicemia was the infected vaginal lacerations resulting from the decedent’s delivery of
her child at home unmeritorious.—There is no merit in the public respondents’ argument
that the cause of the decedent’s post partum septicemia “was the infected vaginal
lacerations resulting from the decedent’s delivery of her child at home” for the incident in

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school could not have caused septicemia post partum, x x x if the necessary precautions to
avoid infection during or after labor were (not) taken.”
Same;  Same; Same; Same; Fact that septicemia post partum is a disease of childbirth
and premature childbirth would not have occurred if she did not accidentally fall in the
classroom overlooked.—The argument is unconvincing. It overlooks the fact that
septicemia post partum is a disease of childbirth, and premature childbirth would not have
occurred if she did not accidentally fall in the classroom.

PETITION for certiorari to review the decision of the Employees’ Compensation

Commission.

The facts are stated in the opinion of the Court.

GRIÑO-AQUINO, J.:

This seven-year-old case involves a claim for benefits for the death of a lady school
teacher which the public respondents disallowed on the ground that the cause of
death was not work-connected.

Before her death on February 19, 1982, petitioner's wife, Oania Belarmino, was a
classroom teacher of the Department of Education, Culture and Sports assigned at
the Buracan Elementary School in Dimasalang, Masbate (p. 13, Rollo). She had
been a classroom teacher since October 18, 1971, or for eleven (11) years. Her
husband, the petitioner, is also a public school teacher.

On January 14, 1982, at nine o'clock in the morning, while performing her duties as
a classroom teacher, Mrs. Belarmino who was in her 8th month of pregnancy,
accidentally slipped and fell on the classroom floor. Moments later, she complained
of abdominal pain and stomach cramps. For several days, she continued to suffer
from recurrent abdominal pain and a feeling of heaviness in her stomach, but,
heedless of the advice of her female co-teachers to take a leave of absence, she
continued to report to the school because there was much work to do. On January
25, 1982, eleven (11) days after her accident, she went into labor and prematurely
delivered a baby girl at home (p. 8, Rollo).

Her abdominal pains persisted even after the delivery, accompanied by high fever
and headache. She was brought to the Alino Hospital in Dimasalang, Masbate on
February 11, 1982. Dr. Alfonso Alino found that she was suffering from septicemia
post partum due to infected lacerations of the vagina. She was discharged from the
hospital after five (5) days on February 16, 1982, apparently recovered but she died
three (3) days later. The cause of death was septicemia post partum. She was 33
years old, survived by her husband and four (4) children, the oldest of whom was
11 years old and the youngest, her newborn infant (p. 9, Rollo).
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On April 21, 1983, a claim for death benefits was filed by her husband. On
February 14, 1984, it was denied by the Government Service Insurance System
(GSIS) which held that 'septicemia post partum the cause of death, is not an
occupational disease, and neither was there any showing that aforesaid ailment
was contracted by reason of her employment. . . . The alleged accident mentioned
could not have precipitated the death of the wife but rather the result of the infection
of her lacerated wounds as a result of her delivery at home" (p. 14 Rollo).

On appeal to the Employees Compensation Commission, the latter issued

Resolution No. 3913 dated July 8, 1988 holding:

We agree with the decision of the system, hence we dismiss this appeal.
Postpartum septicemia is an acute infectious disease of the puerperium resulting
from the entrance into the blood of bacteria usually streptococci and their toxins
which cause dissolution of the blood, degenerative changes in the organs and the
symptoms of intoxication. The cause of this condition in the instant case was the
infected vaginal lacerations resulting from the decedent's delivery of her child which
took place at home. The alleged accident in school could not have been the cause
of septicemia, which in this case is clearly caused by factors not inherent in
employment or in the working conditions of the deceased.

Hence, this petition for review.

After a careful consideration of the petition and the annexes thereof, as well as the
comments of the public respondents, we are persuaded that the public
respondents' peremptory denial of the petitioner's claim constitutes a grave abuse
of discretion.

Rule III, Section 1 of the Amended Rules on Employees' Compensation

enumerates the grounds for compensability of injury resulting in disability or death
of an employee, as follows:

Sec. 1. Grounds — (a) For the injury and the resulting disability or death to be
compensable, the injury must be the result of an employment accident satisfying all
of the following conditions:

(1) The employee must have been injured at the place where his work requires him
to be;

(2) The employee must have been performing his official functions; and

(3) If the injury is sustained elsewhere, the employee must have been executing an
order for the employer.

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(b) For the sickness and the resulting disability or death to be compensable, the
sickness must be the result of an occupational disease listed under Annex "A" of
these Rules with the conditions set therein satisfied; otherwise, proof must be
shown that the risk of contracting the disease is increased by the working
conditions.

(c) Only injury or sickness that occurred on or after January 1, 1975 and the
resulting disability or death shall be compensable under these Rules.

The illness, septicemia post partum which resulted in the death of Oania Belarmino,
is admittedly not listed as an occupational disease in her particular line of work as a
classroom teacher. However, as pointed out in the petition, her death from that
ailment is compensable because an employment accident and the conditions of her
employment contributed to its development. The condition of the classroom floor
caused Mrs. Belarmino to slip and fall and suffer injury as a result. The fall
precipitated the onset of recurrent abdominal pains which culminated in the
premature termination of her pregnancy with tragic consequences to her. Her fall
on the classroom floor brought about her premature delivery which caused the
development of post partum septicemia which resulted in death. Her fall therefore
was the proximate or responsible cause that set in motion an unbroken chain of
events, leading to her demise.

. . . what is termed in American cases the proximate cause, not implying however,
as might be inferred from the word itself, the nearest in point of time or relation, but
rather, [is] the efficient cause, which may be the most remote of an operative chain.
It must be that which sets the others in motion and is to be distinguished from a
mere preexisting condition upon which the effective cause operates, and must have
been adequate to produce the resultant damage without the intervention of an
independent cause. (Atlantic Gulf vs. Insular Government, 10 Phil. 166,171.)

The proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its
immediate predecessor the final event in the chain immediately effecting the injury
as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an
ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result
therefrom. (Bataclan v. Medina, 102 Phil. 181.)

Thus in Enriquez v. WCC, 93 SCRA 366, 372, this Court ruled:

. . . Verily, the right to compensation extends to disability due to disease

supervening upon and proximately and naturally resulting from a compensable

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injury (82 Am. Jur. 132). Where the primary injury is shown to have arisen in the
course of employment, every natural consequence that flows from the injury
likewise arises out of the employment, unless it is the result of an independent
intervening cause attributable to complainants own negligence or misconduct ( I
Larson Workmen's Compensation Law 3-279 [1972]). Simply stated, all the medical
consequences and sequels that flow from the primary injury are compensable.
(Ibid.)

Mrs. Belarmino's fall was the primary injury that arose in the course of her
employment as a classroom teacher, hence, all the medical consequences flowing
from it: her recurrent abdominal pains, the premature delivery of her baby, her
septicemia post partum and death, are compensable.

There is no merit in the public respondents' argument that the cause of the
decedent's post partum septicemia "was the infected vaginal lacerations resulting
from the decedent's delivery of her child at home" for the incident in school could
not have caused septicemia post partum, . . . the necessary precautions to avoid
infection during or after labor were (not) taken" (p. 29, Rollo).

The argument is unconvincing. It overlooks the fact that septicemia post partum is a
disease of childbirth, and premature childbirth would not have occurred if she did
not accidentally fall in the classroom.

It is true that if she had delivered her baby under sterile conditions in a hospital
operating room instead of in the unsterile environment of her humble home, and if
she had been attended by specially trained doctors and nurses, she probably would
not have suffered lacerations of the vagina and she probably would not have
contracted the fatal infection. Furthermore, if she had remained longer than five (5)
days in the hospital to complete the treatment of the infection, she probably would
not have died. But who is to blame for her inability to afford a hospital delivery and
the services of trained doctors and nurses? The court may take judicial notice of
the meager salaries that the Government pays its public school teachers. Forced to
live on the margin of poverty, they are unable to afford expensive hospital care, nor
the services of trained doctors and nurses when they or members of their families
are in. Penury compelled the deceased to scrimp by delivering her baby at home
instead of in a hospital.

The Government is not entirely blameless for her death for it is not entirely
blameless for her poverty. Government has yet to perform its declared policy "to
free the people from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for all (Sec. 7, Art. II, 1973
Constitution and Sec. 9, Art. II, 1987 Constitution). Social justice for the lowly and
underpaid public school teachers will only be an empty shibboleth until Government
adopts measures to ameliorate their economic condition and provides them with

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adequate medical care or the means to afford it. "Compassion for the poor is an
imperative of every humane society" (PLDT v. Bucay and NLRC, 164 SCRA 671,
673). By their denial of the petitioner's claim for benefits arising from the death of
his wife, the public respondents ignored this imperative of Government, and
thereby committed a grave abuse of discretion.

WHEREFORE, the petition for certiorari is granted. The respondents Employees

Compensation Commission and the Government Service Insurance System are
ordered to pay death benefits to the petitioner and/or the dependents of the late
Oania Belarmino, with legal rate of interest from the filing of the claim until it is fully
paid, plus attorney's fees equivalent to ten (10%) percent of the award, and costs of
suit. SO ORDERED.

Labor Law Review- Assignment No. 6

Page 34 of 104
[4]
G.R. No. 58445. April 27, 1989.*

ZAIDA G. RARO, petitioner, vs. EMPLOYEES’ COMPENSATION COMMISSION and

GOVERNMENT SERVICE INSURANCE SYSTEM (Bureau of Mines and Geo-Sciences),
respondents.

Labor Law; Labor Standards; Disability Benefits; State Insurance Fund; A claimant

for disability benefits must prove that his illness was caused by employment and the risk of
contracting the same was increased by his working conditions.—–The law, as it now stands
requires the claimant to prove a positive thing—–that the illness was caused by employment
and the risk of contracting the disease is increased by the working conditions. To say that
since the proof is not available, therefore, the trust fund has the obligation to pay is contrary
to the legal requirement that proof must be adduced. The existence of otherwise non-
existent proof cannot be presumed.

Same;  Same Same; Same; Unless it be shown that a particular form of cancer is

caused by specific working conditions, it cannot be concluded that it was the employment
which increased the risk of contracting the disease.—–In Navalta v. Government Service
Insurance System (G.R. No. 46684, April 27, 1988) this Court recognized the fact that
cancer is a disease of still unknown origin which strikes people in all walks of life,
employed or unemployed. Unless it be shown that a particular form of cancer is caused by
specific working conditions (e.g. chemical fumes, nuclear radiation, asbestos dust, etc.) we
cannot conclude that it was the employment which increased the risk of contracting the
disease.

GUTIERREZ, JR., J.:

Jurisprudence on the compensability of cancer ailments has of late become a

source of confusion among the claimants and the government agencies enforcing
the employees' compensation law. The strongly lingering influence of the principles
of 94 presumption of compensability" and "aggravation" found in the defunct
Workmen's Compensation Act but expressly discarded under the present
compensation scheme has led to conflict and inconsistency in employees'
compensation decisions.

The problem is attributable to the inherent difficulty in applying the new principle of
"proof of increased risk." There are two approaches to a solution in cases where it
cannot be proved that the risk of contracting an illness not listed as an occupational
disease was increased by the claimant's working conditions. The one espoused by
the petitioner insists that if a claimant cannot prove the necessary work connection
because the causes of the disease are still unknown, it must be presumed that
working conditions increased the risk of contracting the ailment. On the other hand,

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the respondents state that if there is no proof of the required work connection, the
disease is not compensable because the law says so.

The petitioner states that she was in perfect health when employed as a clerk by
the Bureau of Mines and Geo-Sciences at its Daet, Camarines Norte regional office
on March 17, 1975. About four years later, she began suffering from severe and
recurrent headaches coupled with blurring of vision. Forced to take sick leaves
every now and then, she sought medical treatment in Manila. She was then a
Mining Recorder in the Bureau.

The petitioner was diagnosed at the Makati Medical Center to be suffering from
brain tumor. By that time, her memory, sense of time, vision, and reasoning power
had been lost.

A claim for disability benefits filed by her husband with the Government Service
Insurance System (GSIS) was denied. A motion for reconsideration was similarly
denied. An appeal to the Employees' Compensation Commission resulted in the
Commission's affirming the GSIS decision.

The following issues are raised in this petition:

1. Whether brain tumor which causes are unknown but contracted during
employment is compensable under the present compensation laws.

2. Whether the presumption of compensability is absolutely inapplicable under the

present compensation laws when a disease is not listed as occupational disease.
(p. 17, Rollo)

The key argument of the petitioner is based on the fact that medical science
cannot, as yet, positively identify the causes of various types of cancer. It is a
disease that strikes people in general. The nature of a person's employment
appears to have no relevance. Cancer can strike a lowly paid laborer or a highly
paid executive or one who works on land, in water, or in the bowels of the earth. It
makes the difference whether the victim is employed or unemployed, a white collar
employee or a blue collar worker, a housekeeper, an urban dweller or a resident of
a rural area.

It is not also correct to say that all cancers are not compensable. The list of
occupational diseases prepared by the Commission includes some cancers as
compensable, namely —

Occupational Diseases Nature of Employment

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16. Cancer of stomach and other Woodworkers, wood products lymphatic and
blood forming vessels; industry carpenters, nasal cavity and sinuses and
employees in pulp and paper mills and plywood mills.

17. Cancer of the lungs, liver Vinyl chloride workers, and brain plastic workers.

(Annex A, Amended Rules on Employees Compensation)

The petitioner questions the above listing. We see no arbitrariness in the

Commission's allowing vinyl chloride workers or plastic workers to be compensated
for brain cancer. There are certain cancers which are reasonably considered as
strongly induced by specific causes. Heavy doses of radiation as in Chernobyl,
USSR, cigarette smoke over a long period for lung cancer, certain chemicals for
specific cancers, and asbestos dust, among others, are generally accepted as
increasing the risks of contracting specific cancers. What the law requires for others
is proof.

The first thing that stands in the way of the petition is the law itself.

Presidential Decree No. 422, as amended, the Labor Code of the Philippines
defines "sickness" as follows:

ART. 167. Definition of Terms. — As used in this Title unless the context indicates
otherwise:

(1) Sickness means any illness definitely accepted as an occupational disease

listed by the Commission, or any illness caused by employment subject to proof by
the employee that the risk of contracting the same is by working conditions. For this
purpose, the Co on is empowered to determine and approve occupational and
work- related illnesses that may be considered compensable sable based on
hazards of employment. (PD 1368, May 1, 1978).

Section 1 (b), Rule III of the Amended Rules on Employees Compensation clearly
defines who are entitled. It provides:

SECTION 1.

(b) For the sickness and the resulting disability or death to be compensable, the
sickness must be the result of an occupational disease under Annex A of these
rules with the conditions set therein satisfied; otherwise, proof must be shown that
the risk of contracting the disease is increase by the working conditions. (Emphasis
supplied)

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The law, as it now stands requires the claimant to prove a positive thing – the
illness was caused by employment and the risk of contracting the disease is
increased by the working conditions. To say that since the proof is not available,
therefore, the trust fund has the obligation to pay is contrary to the legal
requirement that proof must be adduced. The existence of otherwise non-existent
proof cannot be presumed .

In Navalta v. Government Service Insurance System (G.R. No. 46684, April 27,
1988) this Court recognized the fact that cancer is a disease of still unknown origin
which strikes; people in all walks of life, employed or unemployed. Unless it be
shown that a particular form of cancer is caused by specific working conditions (e.
g. chemical fumes, nuclear radiation, asbestos dust, etc.) we cannot conclude that
it was the employment which increased the risk of contracting the disease .

To understand why the "Presumption of compensability" together with the host of

decisions interpreting the "arising out of and in the course of employment" provision
of the defunct law has been stricken from the present law, one has to go into the
distinctions between the old workmen's compensation law and the present scheme.

On January 1, 1975, the Workmen's Compensation Act was replaced by a novel

scheme under the new Labor Code. The new law discarded, among others, the
concepts of "presumption of compensability" and "aggravation" and substituted a
system based on social security principles. The present system is also
administered by social insurance agencies — the Government Service Insurance
System and Social Security System — under the Employees' Compensation
Commission. The intent was to restore a sensible equilibrium between the
employer's obligation to pay workmen's compensation and the employee's right to
receive reparation for work- connected death or disability. (Sulit v. Employees'
Compensation Commission, 98 SCRA 483 [1980]; Armena v. Employees'
Compensation Commission, 122 SCRA 851 [1983]; Erese v. Employees'
Compensation Commission, 138 SCRA 192 [1985]; De Jesus v. Employees'
Compensation Commission, 142 SCRA 92 [1986]; Sarmiento v. Employees'
Compensation Commission, et al., GR No. 65680, May 11, 1988).

Instead of an adversarial contest by the worker or his family against the employer,
we now have a social insurance scheme where regular premiums are paid by
employers to a trust fund and claims are paid from the trust fund to those who can
prove entitlement.

In Sarmiento v. Employees' Compensation Commission (supra), we affirmed the

validity of the new law by explaining the present system as follows:

We cannot give serious consideration to the petitioner's attack against the

constitutionality of the new law on employee's compensation. It must be noted that

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the petitioner filed his claim under the provisions of this same law. It was only when
his claim was rejected that he now questions the constitutionality of this law on
appeal by certiorari.

The Court has recognized the validity of the present law and has granted and
rejected claims according to its provisions. We find in it no infringement of the
worker's constitutional rights.

The new law establishes a state insurance fund built up by the contributions of
employers based on the salaries of their employees. The injured worker does not
have to litigate his right to compensation. No employer opposes his claim There is
no notice of injury nor requirement of controversion. The sick worker simply files a
claim with a new neutral Employees' Compensation Commission which then
determines on the basis of the employee's supporting papers and medical evidence
whether or not compensation may be paid. The payment of benefits is more
prompt. The cost of administration is low. The amount of death benefits has also
been doubled.

On the other hand, the employer's duty is only to pay the regular monthly premiums
to the scheme. It does not look for insurance companies to meet sudden demands
for compensation payments or set up its own fund to meet these contingencies. It
does not have to defend itself from spuriously documented or long past claims.

The new law applies the social security principle in the handling of workmen's
compensation. The Commission administers and settles claims from a fired under
its exclusive control. The employer does not intervene in the compensation process
and it has no control, as in the past, over payment of benefits. The open ended
Table of Occupational Diseases requires no proof of causation. A covered claimant
suffering from an occupational disease is automatically paid benefits.

Since there is no employer opposing or fighting a claim for compensation, the rules
on presumption of compensability and controversion cease to have importance.
The lopsided situation of an employer versus one employee, which called for
equalization through the various rules and concepts favoring the claimant, is now
absent.

The petitioner's challenge is really against the desirability of the new law. There is
no serious attempt to assail it on constitutional grounds.

The wisdom of the present scheme of workmen's compensation is a matter that

should be addressed to the President and Congress, not to this Court. Whether or
not the former workmen's compensation program with its presumptions,
controversions, adversarial procedures, and levels of payment is preferable to the
present scheme must be decided by the political departments. The present law was

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enacted in the belief that it better complies with the mandate on social justice and is
more advantageous to the greater number of working men and women. Until
Congress and the President decide to improve or amend the law, our duty is to
apply it. (at pp. 4, 5, and 6)

The non-adversarial nature of employees' compensation proceedings is crucial to

an understanding of the present scheme. There is a widespread misconception that
the poor employee is still arrayed against the might and power of his rich corporate
employer. Hence, he must be given all kinds of favorable presumptions. This is
fallacious. It is now the trust fund and not the employer which suffers if benefits are
paid to claimants who are not entitled under the law. The employer joins its
employees in trying to have their claims approved. The employer is spared the
problem of proving a negative proposition that the disease was not caused by
employment. It is a government institution which protects the stability and integrity
of the State Insurance Fund against the payment of non-compensable claims. The
employee, this time assisted by his employer, is required to prove a positive
proposition, that the risk of contracting the is increased by working conditions.

The social insurance aspect of the present law is the other important feature which
distinguishes it from the old and familiar system.

Employees' compensation is based on social security principles. All covered

employers throughout the country are required by law to contribute fixed and
regular premiums or contributions to a trust fund for their employees. Benefits are
paid from this trust fund. At the time the amount of contributions was being fixed,
actuarial studies were undertaken. The actuarially determined number of workers
who would probably file claims within any given year is important in insuring the
stability of the said fund and making certain that the system can pay benefits when
due to all who are entitled and in the increased amounts fixed by law.

We have no actuarial expertise in this Court. If diseases not intended by the law to
be compensated are inadvertently or recklessly included, the integrity of the State
Insurance Fund is endangered. Compassion for the victims of diseases not covered
by the law ignores the need to show a greater concern for the trust fund to winch
the tens of millions of workers and their families look for compensation whenever
covered accidents, salary and deaths occur. As earlier stated, if increased
contributions or premiums must be paid in order to give benefits to those who are
now excluded, it is Congress which should amend the law after proper actuarial
studies. This Court cannot engage in judicial legislation on such a complex subject
with such far reaching implications.

We trust that the public respondents and the Social Security System are continually
evaluating the actuarial soundness of the trust funds they administer. In this way,
more types of cancers and other excluded diseases may be included in the list of

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covered occupational diseases. Or legislation may be recommended to Congress
either increasing the contribution rates of employers, increasing benefit payments,
or making it easier to prove entitlement. We regret that these are beyond the
powers of this Court to accomplish.

For the guidance of the administrative agencies and practising lawyers concerned,
this decision expressly supersedes the decisions in Panotes v. Employees'
Compensation Commission Mercado v. Employees' Compensation
CommissionOvenson v. Employees' Compensation Commission [156 SCRA 21
(1987)]; Nemaria v. Employees' Compensation Commission [155 SCRA 166
(1987)] and other cases with conclusions different from those stated above.

WHEREFORE, the petition is hereby DISMISSED The questioned decision of the

public respondents is AFFIRMED. SO ORDERED.

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[8]

No. L-18438. March 30, 1963.

CONRADO PAEZ, petitioner, vs. THE WORKMEN’S COMPENSATION COMMISSION
and ISABELA JAPONES, in behalf of her minor children RODOLFO, ROLANDO and
JAIME, all surnamed BARAWID, respondents.
Workmen’s Compensation Commission; Jurisdiction over hazardous industries, like
business for transportation of goods.—While the mere act of buying and selling palay is in
itself not hazardous, yet when carrying out such business the use of motor vehicles essential
and indispensable to transport the goods especially where the place of purchase was very far
from the place of sale so that to a driver, like the deceased, risk on the road was great, it
becomes a hazardous enterprise and the Workmen’s Compensation Commission was correct
in assuming jurisdiction of the case.

Same; Death arising out of and in the course of employment.—Where the deceased
driver, paid on commission basis, left the truck assigned to him and went to the other side of
the river for the purpose of advising the other truck driver to have all the palay bought
loaded early because he was in a hurry to go back, and he (deceased), outside of his regular
duties, even helped the other driver in the work of loading and unloading the palay at the
bank of the river to be ferried to the other side where his truck was parked, but said driver
against the advice of the other truck driver rode on the third banca which capsized and sunk
and said deceased was drowned, it is held that said deceased driver’s death arose out of and
in the course of employment.

Same; Prescription; Action not barred where there is knowledge of the accident by the
employer and voluntary compensation payments were made to the widow.—Where even if
notice of injury was filed beyond the 3 months period fixed by law, but there is knowledge
of the accident by the employer, his agent or representative, and voluntary compensation
payments were made lo the widow, the proceeding is held valid and the action is not barred
by the statute of limitations.

Same; Compensability of claim; Notorious negligence, meaning of; Not present in

case at bar.—Notorious negligence signifies a deliberate act of the employee to disregard
his own safety. The disregard of a warning, where the deceased did  not act with full
knowledge of the existence of a danger that ordinary prudence would counsel him to avoid,
constituted merely a miscalculation, and cannot be a valid reason to deny his widow the
right to be compensated.
REVIEW of a decision of the Workmen’s Compensation Commission.

PAREDES, J.:

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On October 30, 1957, the heirs of Marciano Barawid, presented with the
Department of Labor, Regional Office No. 3, a complaint for compensation. A
Motion to Dismiss the complaint was presented on January 28, 1958, on three
grounds, to wit —

1. The allegations do not constitute a cause of action;

2. Lack of jurisdiction; it appearing that the capital of Paez is very much less than
P10,000.00 and that his business of buying and selling palay is not hazardous nor
deleterious to employees; and

3. The claim is barred by the statute of limitations.

On March 10, 1958, Hearing Officer Juan M. Gerardo, issued an Order, the
dispositive portion of which states —

Without prejudice to the right of the claimant to file suit against the respondent
under Employer's Liability Act (Act No. 1874) before the Courts as directed by sec.
42, of the Workmen's Compensation Act, the instant claim is hereby declared
DISMISSED for want of jurisdiction of the Regional Office to take cognizance of the
same.

Complainant Isabela Japones, presented a Petition for Review of the above Order.
Associate Commissioner Jose Sanchez, on January 9, 1959, remanded the case
for such action as is consistent with the Order, making the following observations
—

... The Hearing Officer is correct in his finding that the respondent regularly used a
truck owned by him in his business of buying palay. But this is precisely the reason
for the logical conclusion that, although the business of buying palay is not in the
enumeration contained in Section 42 of the Act, which is not exclusive, said
business should nevertheless be considered "hazardous or deleterious" as this
phrase is meant to be understood in the Act..

Moreover, the Hearing Officer found that the respondent used his truck for
transporting not only the palay he purchased but also that of other persons
engaged in the same or similar business as his; and that in all these instances he
charged freight for such transportation. Respondent must therefore, be deemed
engaged in the business of transporting goods which causes him to fall under sub-
paragraph 1, of Section 42 of the Act..

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In view of the foregoing, we hold that the respondent comes within the coverage of
the Workmen's Compensation Act, as amended, either in his business of buying
palay, or in his enterprise of transporting goods; hence, the Regional Office No. 3,
Manila, has jurisdiction to take cognizance of the claim for compensation filed
against him by the claimant.

and remanding the case for further investigation and/or hearing on the merits. The
Hearing Officer received evidence, and rendered the same decision, dismissing the
case, which was again reversed by the Associate Commissioner who ordered Paez
—

1. To pay the claimants, thru this Commission, the sum of THREE THOUSAND
FOUR HUNDRED FIFTY-FIVE and 71/100 (P3,455.71) PESOS as Death benefits;

2. To reimburse the claimant, thru this Commission, the sum of P150.00 for burial
expenses;

3. To pay the amount of TWO HUNDRED FIFTY-NINE and 18/100 (P259.18)

PESOS as attorney's fees pursuant to Section 6, Rule 26, of the Rules of the
Workmen's Compensation Commission and Article 2208 (8) of the new Civil Code;
and

4. To pay the Commission the sum of P35.00 as fees pursuant to Section 35 of the
Act.

After the denial of a motion for reconsideration, the case was brought to this court,
for review.

Paez and his wife were on and sometime before 1953, engaged in the business of
buying palay for the King Tong Seng Ricemill of Victoria, Tarlac, with the latter
supplying the capital of P1,000.00 to P2,000.00. In August, 1953, Paez had been
buying palay in Isabela. For such purpose, he employed agents, two truck drivers
and two truck helpers, all of whom were paid on commission basis. In bringing the
palay purchased by his agents to Nueva Ecija or Tarlac, the same had to be ferried
in bancas across the Magat River in Aurora, Isabela, towards the other bank, which
is Cabatuan; from Cabatuan side to Guimba, the palay were hauled by truck which
was regularly driven by Valentin Lagman. Respondent's truck driver on the Aurora
side was Primitivo Apolonio, who also collected all the palay on said side — hauled
them to the river bank (Aurora side), where he engaged boatmen to ferry the palay
to the Cabatuan side and where Lagman would take them and bring them to
Guimba or Victoria, as the case may be. On August 1, 1953, because his child

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became seriously ill, Lagman engaged the services of Marciano Barawid to
substitute him in undertaking the trip to Isabela, with the understanding that he
(Barawid), was to receive his (Lagman's) pay during the latter's absence. On
August 2, 1953, Barawid drove respondent's truck up to the Cabatuan side of the
Magat River to await for the palay that were to be ferried from the Aurora side. On
the same date, instead of awaiting the palay on the Cabatuan side, Barawid
crossed the Magat River and joined Apolonio on the Aurora side in hauling the
palay. After having collected all the palay on the Aurora side, Apolonio and Barawid
reached the river's bank at about 9:00 o'clock in the evening, and both helped in
loading three (3) bancas. Apolonio advised Barawid not to ride the third banca
because same was already fully loaded, but to take another to Guimba, as he had
to drive a new truck of his brother-in-law. While in the midst of the Magat River, the
banca capsized and sunk, and Barawid was drowned.

The petitioner submits the following issues for determination, to wit —

a) the jurisdiction of the Workmen's Compensation Commission over the case;

b) whether the death arose out of and in the course of employment;

c) prescription of action; and

d) whether the deceased was guilty of notorious negligence.

The Workmen's Compensation Act No. 3428. as amended provides —

SEC. 42. Law applicable to small industries.— All claims for compensation by
reason of an accident in an enterprise, industry, or business carried on or in a
trade, occupation or profession exercised by an employer for the purpose of gain,
whose capital amounts to less than ten thousand pesos and is not hazardous or
deleterious to employees, shall be governed by the provisions of Act Numbered
Eighteen hundred and seventy-four and its amendments: Provided, however, That
the following enterprises or establishments shall be among those considered
hazardous or deleterious to employees:

(1) Any business for the transportation of persons or goods, or both; ....

The regular use of motor vehicles, was indispensable and essential in carrying on
petitioner's business, and necessarily placed his business under the category of
hazardous enterprises. Without the use of motor vehicles, it would be extremely
difficult for petitioner to conduct such business. The provision of law above cited is
not exclusive, for it clearly provides that the enterprises or establishments
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enumerated therein are among those that are considered hazardous or deleterious
to the employees. True it is, that the mere act of buying and selling palay is in itself
not hazardous, but when the one engaged in the business used motor vehicles to
transport the goods, especially when, as in the instant case, the place of purchase
was very far from the place of sale (Isabela to Tarlac), that business became
inherently hazardous and dangerous. To a driver, like the deceased Barawid, risk
on the road was great, resulting from hold-ups and outlaws, falling into ravines,
vehicular accidents of all sorts, collisions, tire blowouts, etc. There seem to be no
serious discussion that the regular use of motor vehicles by the claimant's own
employees makes the business hazardous (Haddad v. Commercial Motor Truck
Co., 146 La. 897, 84 So. 197, [1920]).

The respondent Court found that petitioner was in a sense engaged in the
transportation of goods (palay), by charging freight from other persons who loaded
their palay in his trucks, thereby definitely classifying the business of the petitioner
as hazardous. It was shown that for buying palay for the ricemill, the petitioner was
paid a commission of P.20 for every cavan of palay purchased, aside from the
freight he charged for transporting palay from Isabela to Nueva Ecija or Tarlac at
P1.50 per cavan. This being the case, We need not stretch our imagination far, to
visualize that petitioner was engaged more in the transportation of palay than the
buy-and-sell thereof. The trial court was, therefore, correct in assuming jurisdiction
of the case.

Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of facts.
1äwphï1.ñët

Petitioner contends that the respondent WCC erred in finding that the death of
Barawid arose out of and in the course of employment. In justifying its findings in
this respect, respondent court said —

... And so, each case must be analyzed and decided according to its own peculiar
facts and careful consideration given to the nature and incidents entailed by the
employment..

Here, as elsewhere stated, the deceased Marciano Barawid left the International
truck assigned to him and went to the other side of the Magat River (Aurora side)
for the purpose of advising the other truck driver, Primitivo Apolonio, to have all the
palay bought by the respondent's agent loaded early because he was in a hurry to
go back to Guimba. In fact, Barawid joined Apolonio in the work of loading and
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unloading the palay at the bank of the river to be ferried towards the Cabatuan side
where the International truck was parked. The activities performed by Barawid, we
believe, were incidental to his duties not only as driver but as purchaser of the
respondent who was engaged in the business of buying and selling palay. It is
reasonable to expect an employee, as in the case of Barawid to help a co-
employee in the performance of his duties. And even granting, only for the sake of
argument, that the acts performed by the deceased were not strictly within the
bounds of his duties, still he was, in the fullest sense of the term, in the course of
the employment. For the performance of those acts — helping the other employee
of the respondent load and unload palay — would inure to the benefit of the
respondent in the pursuit of his business. As Arthur Larsen, an eminent authority on
the subject of Workmen's Compensation Laws, has put it:

An act outside an employee's regular duties which is undertaken in good faith to

advance the employer's interests, whether or not the employee's own assigned
work is hereby furthered, is within the course of employment.(Larsen's Workmen's
Compensation Text, Vol. 7, p. P338)

"Simply stated, 'if the act is one for the benefit of the employer or for the mutual
benefit of both, an injury arising out of it will usually be compensable."'(Schneider's
Workmen's Compensation Text, Vol. 7, p. 338.) There is little to be added to the
above observations, except to state that they are based upon the evidence and law
on the subject.

The third proposition dwells on the non-dismissal of the claim for having been filed
out of time. The record shows that the petitioner had knowledge of the death of
Barawid, and he himself made immediate arrangements for the removal of the body
from the place of the accident (Cabatuan) to his home town, Guimba; and that the
petitioner also gave respondent Isabela Japones, the amount of P150.00 for burial
and other expenses and another P150.00 for family subsistence. Knowledge of the
accident by the employer, his agent or representative, is sufficient notice (section
27, of Act. No. 3428, as amended); so that, even if the notice of injury was filed
beyond the 3 months period fixed by law, the proceeding is still valid. The fact that
the petitioner also made voluntary compensation payments to the widow, rendered
it no longer necessary to file the claim for compensation within the time prescribed
by law, as provided for in section 24 of the same Act. The present action is not,
therefore, barred by the statute of limitations.

It is finally contended that the respondent WCC erred in not finding that the
accident was caused through the notorious negligence of the deceased (Sec. 4, of

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Act No. 3428). Petitioner's answer to the complaint for compensation, does not
allege notorious negligence in his defense. That defense should be proven by the
party invoking it. Notorious negligence is something more than mere or simple
negligence, or contributory negligence; it signifies a deliberate act of the employee
to disregard his own personal safety. In the case at bar, there is no showing at all
that deceased Barawid had deliberately disregarded his safety; no intention was
attributed to him to end his life or that he wantonly courted death. The deceased
wanted to return home as it was getting late, and even helped in the loading and
unloading of the palay to the banca and truck, to finish the work that day. It is
claimed that the deceased wanted to return home, because he was to drive the
new truck of his brother-in-law, and he was in such a hurry that he unheeded the
suggestion of his companion not to embark any more, as it was dark and the banca
was fully loaded. Conceding this to be true, for the purpose of argument, (Barawid
can no longer contradict it, his lips having been sealed by death), still the disregard
of the warning, can not be considered as a notorious negligence. Disobedience to
rules, orders and/or prohibition, does not in itself constitute notorious negligence, if
no intention can be attributed to the injured to end his life. And if in the case at bar,
there was any negligence at all, the same can not be considered notorious or
evident. The deceased did not act with the full knowledge of the existence of a
danger that ordinary prudence would counsel him to avoid such a case. That a
banca loaded with palay and 3 persons, at night time, would sink if one person
more was added to its weight, constituted merely a miscalculation on the part of
such person, if he thought it would be safe for him to embark, the alleged
overloading notwithstanding Barawid's promptness in accomplishing his duties, to
enable him to attend his personal interest thereafter, cannot be a valid reason to
deny him the right to be compensated.

IN VIEW HEREOF, the petition is dismissed, and the decision appealed from is
affirmed, with costs against the petitioner.

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[6]

G.R. No. 94167. January 21, 1991.*

MABUHAY SHIPPING SERVICES, INC. AND SKIPPERS MARITIME CO., LTD.,
petitioners, vs. HON. NATIONAL LABOR RELATIONS COMMISSION (FIRST
DIVISION) AND CECILIA SENTINA, respondents.

Labor Standards; Death Benefits; When the death of a seaman resulted from a

deliberate or willful act on his own life, and it is directly attributable to the seaman, such
death is not compensable.—The mere death of the seaman during the term of his
employment does not automatically give rise to compensation. The circumstances which led
to the death as well as the provisions of the contract, and the right and obligation of the
employer and seaman must be taken into consideration, in consonance with the due process
and equal protection clauses of the Constitution. There are limitations to the liability to pay
death benefits. When the death of the seaman resulted from a deliberate or willful act on his
own life, and it is directly attributable to the seaman, such death is not compensable. No
doubt a case of suicide is covered by this provision.

Same;  Same; Same; The death of a seaman, who, in a state of intoxication, ran

amuck, inflicted injury to another, so that in his defense, the latter fought back, and in the
process killed the seaman, is not compensable.—By the same token, when as in this case
the seaman, in a state of intoxication, ran amuck, or committed an unlawful aggression
against another, inflicting injury on the latter, so that in his own defense the latter fought
back and in the process killed the seaman, the circumstances of the death of the seaman
could be categorized as a deliberate and willful act on his own life directly attributable to
him. First he challenged everyone to a fight with an axe. Thereafter, he returned to the
messhall, picked up and broke a cup and hurled it at an oiler Ero who suffered injury. Thus
provoked, the oiler fought back. The death of seaman Sentina is attributable to his unlawful
aggression and thus is not compensable.

PETITION for certiorari to review the decision of the National Labor Relations
Commission.

The employer is exempted from liability for burial expenses for a seaman who
commits suicide. How about in a case of one who ran amuck or who in a state of
intoxication provoked a fight as a result of which he was killed? Is the employer
similarly exempt from liability? This is the issue in this case.

Romulo Sentina was hired as a 4th Engineer by petitioner Mabuhay Shipping

Services, Inc. (MSSI) for and in behalf of co-petitioner, Skippers Maritime Co., Ltd.
to work aboard the M/V Harmony I for a period of one year. He reported for duty
aboard said vessel on July 13, 1987.
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On January 16, 1988 at about 3 p.m., while the vessel was docked alongside
Drapetona Pier, Piraeus, Greece, Sentina arrived aboard the ship from shore leave
visibly drunk. He went to the messhall and took a fire axe and challenged those
eating therein. He was pacified by his shipmates who led him to his cabin.
However, later he went out of his cabin and proceeded to the messhall. He became
violent. He smashed and threw a cup towards the head of an oiler Emmanuel Ero,
who was then eating. Ero touched his head and noticed blood. This infuriated Ero
which led to a fight between the two. After the shipmates broke the fight, Sentina
was taken to the hospital where he passed away on January 17, 1988.1 Ero was
arrested by the Greek authorities and was jailed in Piraeus.

On October 26, 1988, private respondents filed a complaint against petitioners with
the Philippine Overseas Employment Administration (POEA) for payment of death
benefits, burial expenses, unpaid salaries on board and overtime pay with damages
docketed as POEA Case No. (M) 88-10-896. After submission of the answer and
position papers of the parties a decision was rendered by the POEA on July 11,
1989, the dispositive part of which reads as follows:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered ordering

Mabuhay Shipping Services, Inc. and Skippers Maritime Co., Ltd. to pay
complainant Cecilia S. Sentina the sum of TWO HUNDRED THIRTY THOUSAND
PESOS (P230,000.00) representing the deceased's death benefit and burial
compensation, the sum of THREE HUNDRED FIFTY US DOLLARS (US$350.00)
or its peso equivalent at the time of payment representing unpaid shipboard pay
and fixed overtime pay plus ten percent (10%) of the total judgment award by way
of and as attorney's fees.

All other claims are ordered dismissed

SO ORDERED.2

A motion for reconsideration and/or appeal was filed by petitioners which the
respondent First Division of the National Labor Relations Commission (NLRC)
disposed of in a resolution dated March 31, 1990 dismissing the appeal and
affirming the appealed decision.3

A motion for reconsideration thereof filed by petitioners was denied by said public
respondent in a resolution dated June 29, 1990.

Hence, the herein petition for certiorari wherein the following grounds are invoked:

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The Hon. NLRC, gravely abused its discretion in holding that "The payment of
Death Compensation Benefit only requires that the seaman dies during the term of
the contract, and no other."

That the Hon. NLRC, gravely abused its discretion in holding that even if the
subject seaman's death resulted from the fight he himself created, such
nonetheless does not constitute a "deliberate or wilfull act on his own life."

That the Hon. NLRC, gravely abused its discretion in holding, that the death of the
late 4/Engr Romulo Sentina is compensable.4

The petition is impressed with merit.

Part II, Section C, No. 6 of the POEA Standard Format for Filipino seamen
employed in ocean going vessels states that —

No compensation shall be payable in respect of any injury, incapacity, disability or

death resulting from a deliberate or willful act on his own life by the seaman,
provided however that the employer can prove that such injury, incapacity, disability
or death is directly attributable to the seamen.

The same provision of the standard format also provides —

In case of death of the seaman during the term of his contract, the employer shall
pay his beneficiaries the amount of

b. P210,000.00 for other officers including radio operators and master electrician.
(Memo Circular No. 5 effective March 1, 1986)

In interpreting the aforequoted provision in its decision, the POEA held that
payment of death compensation benefits only requires that the seaman should die
during the term of the contract and no other. It further held that the saving provision
relied upon by petitioners refers only to suicide where the seaman deliberately and
intentionally took his own life.5

Public respondent in affirming the said POEA decision made the following
disquisition

It is not difficult for us to understand the intent of the aforequoted "Part II, Section
C, No. 6 of the POEA Standard Format" that to avoid death compensation, two
conditions must be met:

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a) the subject death much have resulted "from a deliberate or willful act on his own
life by the seaman;" and

b) such death "directly attributable to the seaman" must have been proven by the
"employer."

Thus, even if arguendo, the appellants may successfully prove that the subject
seaman's death resulted from the fight he himself created, such, nonetheless does
not constitute a "deliberate or willful act on his own life." On this ground alone, the
instant appeal would already fail.6

The mere death of the seaman during the term of his employment does not
automatically give rise to compensation.1âwphi1 The circumstances which led to
the death as well as the provisions of the contract, and the right and obligation of
the employer and seaman must be taken into consideration, in consonance with the
due process and equal protection clauses of the Constitution. There are limitations
to the liability to pay death benefits.

When the death of the seaman resulted from a deliberate or willful act on his own
life, and it is directly attributable to the seaman, such death is not compensable. No
doubt a case of suicide is covered by this provision.

By the same token, when as in this case the seaman, in a state of intoxication, ran
amuck, or committed an unlawful aggression against another, inflicting injury on the
latter, so that in his own defense the latter fought back and in the process killed the
seaman, the circumstances of the death of the seaman could be categorized as a
deliberate and willful act on his own life directly attributable to him. First he
challenged everyone to a fight with an axe. Thereafter, he returned to the messhall
picked up and broke a cup and hurled it at an oiler Ero who suffered injury. Thus
provoked, the oiler fought back The death of seaman Sentina is attributable to his
unlawful aggression and thus is not compensable.

Even under Article 172 of the Labor Code, the compensation for workers covered
by the Employees Compensation and State Insurance Fund are subject to the
limitations on liability.

Art. 172. Limitations of liability. — The State Insurance Fund shall be liable for the
compensation to the employee or his dependents except when the disability or
death was occasioned by the employee's intoxication, willful intent to injure or kill
himself or another, notorious negligence, or otherwise provided under this Title.

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Private respondent pointed out that petitioner MSSI endorsed the claim for
compensation of private respondents. Said petitioner admits this fact but asserts
that it was not favorably acted upon by its principal, petitioner Skippers Maritime
Co., Inc. because of the circumstances that led to the death of Sentina.

WHEREFORE, the petition is GRANTED. The questioned decision of the POEA

dated July 11, 1989 and the resolutions of public respondent dated May 31, 1990
and June 29, 1990 affirming the same are hereby set aside and another judgment
is hereby rendered dismissing the complaint.

SO ORDERED.

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[7]

G.R. No. 212878 February 1, 2016

MARLOW NAVIGATION PHILS., INC. MARLOW NAVIGATION CO., LTD., W.

BOCKSTLEGEL REEDEREI (Germany), GALVEZ, JR., Petitioners
vs.WILFREDO L. CABATAY, Respondent.

DECISION

BRION, J.:

We resolve the present petition for review on certiorari1 which seeks to nullify the
May 31, 2013 decision2 and June 4, 2014 resolution 3 of the Court of Appeals in CA-
G.R. SP No. 120698.

The Antecedents

The respondent Wilfredo Cabatay (Cabatay) entered into a ten-month contract of

employment as able seaman with the petitioners Marlow Navigation, Philippines,
Inc., (agency) and its principal Marlow Navigation Co., Ltd., (Marlow Navigation),
for the vessel MIV BBC OHIO. The contract was supplemented by a collective
bargaining agreement or the Total Crew Cost Fleet Agreement (TCC-FA) 4 between
the International Workers Federation (ITF) and Marlow Navigation. He boarded the
vessel on November 23, 2009.

While on duty on December 30, 2009, Cabatay fell from a height of four meters in
his work area; his side, shoulder, and head were most affected by his
fall.1âwphi1 He was brought to a hospital in Huangpu, China, where he was
diagnosed with "Left l-4 Verterbra Transverse Bone broken (accident)." He was
declared unfit to work for 25 days. On January 7, 2010, he was medically
repatriated.

Cabatay arrived in Manila on January 8, 2010, and was immediately referred to the
company doctor, Dr. Dolores Tay (Dr. Tay), of the International Health Aide
Diagnostic Services, Inc., for examination and treatment. He underwent several
tests, including a CT scan and a repeat audiometry and MRI.

On March 19, 2010, Cabatay complained of right shoulder pain. On April 13, 2010,
he underwent surgery on the rotator cuff on his shoulder. After surgery, he missed
several appointments with Dr. Tay and failed to undergo his physiotherapy on time,
starting it only on May 25, 2010.

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Earlier, or on May 7, 2010, Dr. Tay gave Cabatay an interim disability assessment
of Grade 10 for his shoulder injury and Grade 3 for impaired hearing. She expected
Cabatay’s hearing and shoulder problems to be resolved within three to six months,
although he was still under treatment as of June 3, 2010.

On June 9, 2010, Dr. Tay issued a combined 36% disability assessment for
Cabatay based on the compensation scale under the TCC-FA, 5 thus: (1) 5% for
communication handicap of severe to total; (2) 2% for hearing handicap of mild to
medium; (3) 3% compensation for each ear—hampering tinnitus and distortion of
hearing; (4) 8% for his spine injury with medium severe fracture without reduction of
mobility; and (5) 15% for his shoulder injury, with right shoulder elevation up to a
90-degree angle.

Meantime, or on May 11, 2010, Cabatay filed a complaint against the petitioners for
permanent total disability compensation, sickness wages, damages, and attorney’s
fees. While he did not dispute the company doctor’s findings, he argued that he
was entitled to permanent total disability benefits since he had lost his employment
(profession) due to his injury which, he claimed, is compensated under the TCC-FA
at US$125,000.00.

The Compulsory Arbitration Rulings

In his decision6 of January 4, 2011, Labor Arbiter (LA) Quintin B. Cueto III found
that Cabatay had lost his employment as a seaman and awarded him permanent
total disability compensation of US$125,000.00 under the TCC-FA. The evidence,
LA Cueto stressed, showed that Cabatay was permanently unfit for sea service in
any capacity, despite the company doctor’s 36% disability grading. He considered
Dr. Tay’s prognosis of the resolution of Cabatay’s hearing problem from three to six
months a mere optimistic assessment.

The petitioners appealed to the National Labor Relations Commission (NLRC)

which rendered a decision7 setting aside LA Cueto’s award. It also ordered the
petitioners to pay Cabatay, jointly and severally, $45,000.00 in permanent partial
disability compensation equivalent to Dr. Tay’s combined 36% disability
assessment, plus $1,000.00 attorney’s fees.

Cabatay moved for, but failed to obtain, a reconsideration from the NLRC, leaving
him no option but to seek relief from the CA through a Rule 65 petition for certiorari.
He charged the labor tribunal with grave abuse of discretion for setting aside LA
Cueto’s award due to his failure to question Dr. Tay’s findings, without ruling on the
substantive issues of the case.

The CA Decision

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In its decision under review, the CA granted the petition, reversed the NLRC ruling,
and reinstated LA Cueto’s award. It held that under existing
jurisprudence,8 Cabatay’s disability had become permanent total, considering that
while he was injured on December 30, 2009, he was still being given medical
attention on June 3, 2010, a period of more than 120 days, or a total of 155 days.

The CA explained that while the treatment can be extended up to a maximum of

240 days as in Cabatay’s case, he is considered under temporary disability within
the same period. His condition, it pointed out, "is still subject to the fact that the
company physician has to make a determination whether he is fit for sea service or
not; in any event, it did not negate the fact that if the seafarer was disabled
continuously for more than 120 days, he is considered permanently disabled." 9 It
noted that Dr. Tay had not declared Cabatay fit to work within the 240-day period.

The petitioners moved for reconsideration, reiterating the same arguments they
raised in the petition. Additionally, they manifested that Cabatay had already
executed the NLRC award of $46,000.00 ($45,000.00 disability compensation and
$1,000.00 as attorney’s fees), thereby accepting "the correctness and propriety of
the judgment award."10 This was the reason, they explained, why they earlier
moved to have the case declared moot and academic. 11 The appellate court denied
the motion.

The Petition

The petitioners now ask the Court for a reversal of the CA rulings on the grounds
that: (1) Cabatay’s claim had been mooted when he enforced the NLRC award; (2)
he is not entitled to permanent total disability compensation as Dr. Tay gave him
only a combined 36% disability rating; and to damages, as they were in good faith
in responding to his condition; (3) under the circumstances, his inability to work for
more than 120 days does not constitute permanent total disability; and (4)
petitioners Antonio Galvez, Jr., and Orlando Alidio are not liable to Cabatay’s claim
since they are mere corporate officers of the agency.

The petitioners insist that Cabatay is entitled only to $45,000.00 in disability

compensation representing the combined 36% disability rating given to him by Dr.
Tay, and which had already been paid to him. This disability rating, they stress, was
based on the compensation schedule under the very same TCC-FA relied upon by
the labor arbiter for his decision. On the state of Cabatay’s health, they urge the
Court to take notice that his condition had "vastly improved as a result of his
treatment, including arthroscopy surgery which the petitioners provided to him." 12

Further, the petitioners maintain that while Cabatay argues that he has already lost
his profession and is entitled to 100% compensation, Section 19.3 on Permanent
Medical Unfitness of the TCC-FA provides that "any seafarer assessed at less than

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50% disability under the attached Annex 3 but certified as permanently unfit for
further sea service by a doctor appointed mutually by the Owners/Managers and
the ITF shall be entitled to 100% compensation." 13

The above CBA provision, they point out, was ignored in the resolution of
Cabatay’s claim. They submit that they proposed to have his medical condition
referred to a mutually appointed doctor for determination, but he refused. His
refusal, they argue, "should be taken as an admission against his interest." 14

The petitioners dispute the CA’s pronouncement that Cabatay’s mere inability to
perform his duties for 120 days rendered him totally and permanently disabled.
They contend that the 120-day rule for permanent total disability does not apply to
his case since the company-designated physician had already made an
assessment of his disability, which should be respected, pursuant to Section 20 (B)
3 of the POEA-SEC.

Lastly, the petitioners reiterate that Cabatay is not entitled to damages and
attorney’s fees because they have not committed any act of bad faith in dealing
with him. From the moment he was repatriated, they point out, he was taken care
of, and was referred to the company doctor for examination and treatment until he
attained maximum cure.

Cabatay’s Position

In his comment15 dated September 22, 2014, Cabatay prays for a dismissal of the
petition for lack of merit, contending that:

1. His claim for full disability benefits had not been mooted even after he secured
the execution of the $46,000.00 awarded by the NLRC. The ruling in Career
Philippines Ship Management, Inc. v. Geronimo Madjus,16 invoked by the
petitioners, is not squarely applicable in his situation. In that case, the manning
agency executed the judgment award in favor of the seafarer to prevent its
imminent execution while it pursued its petition for certiorari with the CA.

In the same case, the Court considered the Conditional Satisfaction of Judgment as

an amicable settlement between the parties, which rendered the agency’s petition
for certiorari academic, thereby putting closure to the case; otherwise, it would
place the seafarer at a disadvantage. The Court explained that while the agency
had other remedies available to it, such as its petition for certiorari itself and
eventually an appeal to the Court, the seafarer could no longer pursue other claims,
including the award of interest that may accrue during the pendency of the case.

In the present dispute, Cabatay points out, he was the one who enforced the NLRC
award, without prejudice to his petition for certiorari before the CA. He simply

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moved for execution of the uncontested portion of the award, which is allowed
under the NLRC rules of procedure; but unless he makes an unequivocal waiver of
his right to pursue the case, the petitioners should not assume that he is giving up
the balance of his claim.

2. He is entitled to full disability benefits. The TCC-FA, whose applicability the

petitioners acknowledge, requires only that the seafarer is deprived of employment
on account of an accident which occurred during his tour of duty, to be entitled to
100% compensation. Thus, all that he has to prove is the loss of his profession
because of his disability.

He insists that he has already lost his employment or his "profession." The
company doctor’s certification showed that he has a severe communication
handicap, severe fracture of the spine, and impeded elevation of the arm at 90
degrees. Moreover, the petitioners themselves have not re-hired him. This is an
indication, he submits, that he would no longer pass any pre-employment medical
examination (P.E.M.E).

3. The award of attorney’s fees to him is proper because he had to secure the
services of a lawyer in order to vindicate his rights as there was no assurance that
the petitioners would have granted his just demands had the matter not gone
through the legal process.

4. Finally, the inclusion of Galvez and Alidio as parties in the case is called for
because they are responsible officers of an agency engaged in the hiring of ship
manpower; as such, they are solidarily liable with the agency and the foreign
employer for his disability compensation claim under Section 10 of R.A. No. 8042,
the Migrant Workers and Overseas Filipinos Act.

The Court’s Ruling

"Entitlement to disability benefits by seamen on overseas work is a matter

governed, not only by medical findings but, by law and by contract," and so the
Court declared in Vergara v. Hammonia Maritime Services, Inc., et al. 17

Guided by this Court pronouncement, we find merit in the petition. Based on the
medical findings, the governing law—the POEA-SEC—and the contract between
the parties—the TCC-FA—as well as applicable jurisprudence, we hold that the
respondent Cabatay is entitled only to disability benefits as awarded by the NLRC.

The medical findings/Cabatay’s disability assessment

On record, upon his arrival in Manila on January 8, 2010, following his medical
repatriation, Cabatay was immediately referred to Dr. Tay, the company-designated

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physician, for examination and treatment. He was under Dr. Tay’s medical care and
management for six months or until June 9, 2010, when she gave him a combined
36% disability assessment. All this time, he underwent several tests, a CT scan,
audiometry and MRI, as well as therapy sessions, at the petitioners’ expense.

Cabatay did not object to Dr. Tay’s assessment, yet he filed a claim for permanent
total disability compensation, which the labor arbiter granted declaring that he was
entitled to full disability benefits because he had lost opportunities for his
employment/profession. On appeal, the NLRC set aside the arbiter’s decision and
relied on Dr. Tay’s disability assessment "in the absence of any substantial proof in
support of complainant’s bare allegation of loss of profession." 18 The CA, in turn,
upheld the arbiter’s award, holding that since Cabatay was "disabled continuously
for more than 120 days, he is considered permanently disabled," and the "CBA
provides that the seafarer is entitled to full benefits even if he suffered less than
50%of the total disability under the schedule so long as he is no longer fit for sea
duty."19

The POEA-SEC; the TCC-FA

We find that the CA ruling disregarded relevant provisions of the POEA-SEC and
the TCC-FA. This is a reversible error as we shall discuss below.

As intimated earlier, the POEA-SEC and the TCC-FA govern Cabatay’s

employment with the petitioners. These two instruments are the law between the
parties as the Court emphasized in Philippine Hammonia

Ship Agency, Inc., v. Eulogio Dumadag.20

Under the 2002 POEA-SEC, it is the company-designated physician who

declares/establishes the fitness to work or the degree of disability of a seafarer who
is repatriated for medical reasons and needs further medical attention. 21 Thus,
under Section 20 (B) 3, the seafarer is required to submit to a post-employment
medical examination by the company-designated physician. 22

On the other hand, under the TCC-FA, 23 "The disability suffered by the Seafarer
shall be determined by a doctor appointed mutually by the Owners/Managers and
the ITF, and the Owners/Managers shall provide disability compensation to the
Seafarer in accordance with the percentage specified in the table below xxx." 24 The
TCC-FA also provides for a Compensation Scale under its Annex 3 upon which Dr.
Tay, the companydesignated physician, based her assessment of Cabatay’s
disability.

There is no question that there had been compliance with Section 20 (B) of the
POEA-SEC in regard to Cabatay’s post-employment medical examination. It is also

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established that he went through an intensive treatment, including special medical
procedures and therapy sessions, under the care and management of Dr. Tay for
six months or for 180 days within the 240-day extended period allowed under the
rules implementing the employees compensation law. 25 At the conclusion of his
treatment and therapy program, Dr. Tay gave him a 36% disability assessment
pursuant to the compensation schedule under the TCC-FA.

As Cabatay himself admitted, he did not dispute Dr. Tay’s findings and neither did
he offer a contrary finding. The NLRC therefore committed no grave abuse of
discretion when it awarded Cabatay disability compensation in accordance with
Dr.Tay’s assessment, there being no disagreement on the assessment. Be this as
it may, we are not unmindful of the fact that under the TCC-FA, the seafarer’s
disability shall be determined by a doctor mutually appointed by the employer
(owner/manager) and the union (ITF). There was no such determination in this
case, either under Section 19.2 as cited above, or Section 19.3 under the TCC-FA
as invoked by the petitioners.

The absence of a disability assessment by a doctor chosen by the parties,

however, will not invalidate Dr. Tay’s assessment, not only because Cabatay
accepted Dr. Tay’s findings, but also because he refused the petitioners’ proposal
that his medical condition be referred to a mutually appointed doctor for
determination.26 Cabatay never denied this particular submission of the petitioners.

The 120-day rule; loss of employment/profession In reversing the NLRC decision,

the CA declared that while Cabatay’s treatment was extended (up to a maximum of
240 days),27 it did not negate the fact that he was disabled continuously for more
than 120 days and therefore permanently disabled, 28 especially when Dr. Tay had
not declared Cabatay fit to work within the extended period. This is a
misappreciation of the significance of the 120-day rule and the 240-day extended
period as clarified in applicable rulings of the Court.

In Vergara v. Hammonia,29 the Court explained what to expect within this period in

terms of the seafarer’s medical condition, thus:

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 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

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declared fit to work at any time such declaration is justified by medical
condition. (underscoring and emphasis ours)

The question of why no fit-to-work declaration was issued by Dr. Tay is answered
by her combined 36% disability assessment for Cabatay.1âwphi1 The CA thus
erred in holding that since his disability went beyond 120 days, he had become
permanently and totally disabled. Again, in Vergara, the Court stressed: "This
declaration of a permanent total disability after the initial 120 days of temporary
disability cannot, however, be simply lifted and applied as a general rule for all
cases in all contexts. The specific context of the application should be considered,
as we must do in the application of all rulings and even of the law and of the
implementing regulations."30

Also, in Splash Philippines, Inc. v. Ruizo, the Court said that the 120-day
rule "cannot be used as a cure-all formula for all maritime compensation cases. Its
application must depend on the circumstances of the case, including especially
compliance with the parties ' contractual duties and obligations as laid down in the
POEA-SEC and/or their CBA, if one exists."31

Since Dr. Tay had timely and duly made a disability assessment for Cabatay, the
CA likewise erred in affirming LA Cueto's opinion that he is entitled to permanent
total disability benefits because he had lost his employment/profession. Neither can
Cabatay' s submission that he had lost his profession in contemplation of the TCC-
FA prevail over Dr. Tay's assessment, not only because he did not dispute the
assessment, but also because he did not go through the procedure under the
agreement on how a disability is determined, permanent total or otherwise.

Needless to say, a seafarer cannot claim full disability benefits on his mere say-so
in complete disregard of the POEA-SEC and the CBA, which are, to reiterate, the
law between the parties and which they are duty bound to observe.32 And so it
must be in Cabatay's case, especially when he refused the petitioners' offer33 that
his medical condition be referred to a mutually appointed doctor under Section 19.3
of the TCC-FA, to determine whether, despite Dr. Tay's combined 36% disability
assessment under Annex 3 of the agreement, he is permanently unfit for further
sea service. Absent such a determination (certification) by a mutually appointed
doctor, we hold that Dr. Tay's assessment should stand.

This being the case, we find no need to discuss the rest of Cabatay's arguments,
particularly his claim that he has not been re-hired by the petitioners and that he will
not anymore pass a pre-employment medical examination. In any event, there is no
showing that he sought a re-hiring with the petitioners and was refused, or that he
was ever subjected to a P .E.M.E. and failed it.

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WHEREFORE, premises considered, the petition for review on certiorari is
GRANTED. The assailed decision and resolution of the Court of Appeals are SET
ASIDE and the March 31, 2011 decision of the National Labor Relations
Commission is REINSTATED.

SO ORDERED.

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[8]

G.R. No. 202114. November 9, 2016.*

ELMER A. APINES, petitioner, vs. ELBURG SHIPMANAGEMENT PHILIPPINES,

INC., and/or DANILO F. VENIDA, respondents.
Petition for Review on Certiorari; As a rule, only questions of law, not questions of
fact, may be raised in a petition for review on certiorari under Rule 45.—“As a rule, only
questions of law, not questions of fact, may be raised in a petition for review
on certiorari under Rule 45.” The Court is, thus, generally bound by the CA’s factual
findings. There are, however, exceptions to the foregoing, among which is when the CA’s
findings are contrary to those of the trial court or administrative body exercising quasi-
judicial functions from which the action originated.

Labor Law; Seafarers; Disability Benefits; Apines’ consistent claims about what

occurred while he was onboard the ship, and the medical records substantially lend
credence to the factual assertion that indeed, he sustained an accidental injury prior to his
repatriation.—In  précis, Apines’ consistent claims about what occurred while he was
onboard the ship, and the medical records showing that he had Medial Meniscal Tear
substantially lend credence to the factual assertion that indeed, he sustained an accidental
injury prior to his repatriation. Capt. Castañares’ mere statements pale in comparison to the
foregoing.

Same; Same; Same; In Interorient Maritime Enterprises, Inc. v. Remo, 622 SCRA 237
(2010), it was ruled that the absence of a post-employment medical examination cannot be
used to defeat respondent’s claim since the failure to subject the seafarer to this
requirement was not due to the seafarer’s fault but to the inadvertence or deliberate refusal
of petitioners.—In Interorient Maritime Enterprises, Inc., et al. v. Remo, 622 SCRA 237
(2010), the Court emphatically ruled that “the absence of a post-employment medical
examination cannot be used to defeat respondent’s claim since the failure tosubject the
seafarer to this requirement was not due to the seafarer’s fault but to the inadvertence or
deliberate refusal of petitioners.”
Same; Same; Same; Without the assessment of the company-designated doctor, there
was nothing for Apines’ own physicians to contest rendering consultation with a third
doctor agreed upon by the parties as superfluous.—Sans referral to a company-designated
doctor, no post-employment medical examination can be performed on Apines by ESPI. No
written fit to work or disability grading certificate was also issued. Without the assessment
of the company-designated doctor, there was nothing for Apines’ own physicians to contest
rendering consultation with a third doctor agreed upon by the parties as superfluous.

Same; Same; Same;  Under Section 32-A(16)(b) of the 2000 Philippine Overseas
Employment Administration-Standard Employment Contract (POEA-SEC), for
osteoarthritis to be considered as an occupational disease, the same must have been
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contracted in any occupation involving minor or major injuries to the joint.—Further, the
possibility that Apines’ Medial Meniscal Tear triggered the onset of osteoarthritis cannot be
discounted. Under Section 32-A(16)(b) of the 2000 POEA-SEC, for osteoarthritis to be
considered as an occupational disease, the same must have been contracted in any
occupation involving minor or major injuries to the joint. Apines’ case falls within the
qualification.

Same; Same; Same; In disability compensation claims, “what is important is that the
seafarer was unable to perform his customary work for more than one hundred twenty
(120) days which constitutes permanent total disability,” since “an award of a total and
permanent disability benefit would be germane to the purpose of the benefit, which is to
help the employee in making ends meet at the time when he is unable to work.”—In
disability compensation claims, “what is important is that [the seafarer] was unable to
perform his customary work for more than 120 days which constitutes permanent total
disability,” since “an award of a total and permanent disability benefit would be germane
to the purpose of the benefit, which is to help the employee in making ends meet at the time
when he is unable to work.”
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
 
REYES, J.:

Before this Court is a petition for review on certiorari1 under Rule 45 of the Rules of
Court filed by Elmer A. Apines (Apines) to assail the Decision 2 rendered on January
26, 2012 and Resolution3 issued on May 30, 2012 by the Court of Appeals (CA) in
CA-G.R. SP No. 114221. The dispositive portion of the assailed decision reads:

WHEREFORE, the instant petition is hereby GRANTED and the NLRC Decision

dated December 14, 2009 and Resolution dated April 14, 2010 are SET ASIDE.
The Complaint for total and permanent disability benefits, reimbursement of
medical, hospital and transportation expenses, moral and exemplary damages,
sickwage allowance, attorney's fees and legal interest is hereby DISMISSED. In
view of the payment made to [Apines] by petitioners Elburg Shipmanagement
Philippines, Inc. and Danilo F. Venida in satisfaction of NLRC Decision dated
December 14, 2009 and Resolution dated April 14, 2010, [Apines] is hereby
directed to return to petitioners Elburg Shipmanagement Philippines, Inc. and
Danilo F. Venida the amount of Three Million Twenty[-]Nine Thousand
Eighty[-]Eight Pesos [and] 92/100 (P3,029,088.92).

SO ORDERED.4
The assailed Resolution5 dated May 30, 2012 denied Apines' motion for
reconsideration.6

Antecedent Facts
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Elburg Shipmanagement Philippines, Inc. (ESPI) is a local manning agency, with
Danilo F. Venida as representative (collectively, the respondents). Emirates
Trading Agency LLC (ETAL) is among ESPI's foreign principals. 7

On September 11, 2007, Apines boarded ETAL's ship, M/V Bandar TBN Trans
Gulf, for an eight-month engagement as bosun. 8

Apines claimed that sometime in the third week of September, a British surveyor
was on board the ship to inspect the cargo hold. Captain Glicerio Castañares
(Capt. Castañares) and Chief Mate Edgardo Llevares instructed Apines to put an
apparatus on the top tank of the cargo hold to check for possible leaks. Apines
promptly complied with the order. On his way up from the cargo hold, he
accidentally stepped on scattered iron ore pellets causing his left knee to strongly
hit the steel railings of the ladder, and for him to slip and fall. 9

According to Apines, despite a sprain and swollen ankle, he was able to stand up
and walk. When the pain eventually became intolerable, Apines informed Capt.
Castañares about his condition. Apines was given analgesics. However, his
request to be brought to the nearest port for medical attention remained unheeded
since the ship was still on voyage. Further, whenever the ship reached a port,
Apines was assigned as a crane driver.10

On November 10, 2007, Apines consulted with an orthopedic surgeon named Dr.
Abraham George (Dr. George) when the ship reached the Port of Bahrain. Dr.
George's Medical Report11 reads:
Symptoms: PAIN ON THE LEFT KNEE (SWELLING)

When did the sym[p]toms start: 1 MONTH+

Diagnosis: LATERAL COLLATERAL LIGAMENT SPRN

                ? MEDIAL MENISCAL INJU

Is declared:     FIT          Yes       No

                     UNFIT      Yes       No

1) The patient must attend the Doctor again on: WITH MRI REPORT

2) The seaman must go to Hospital for MRI SCAN-LEFT KNEE

3) Special Remarks: MEDICATIONS AND HINGED KNEE BRACE GIVEN

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Present History
[P]ain Left Knee since 45 days after a fall on ship at work. Now has pain on
climbing at work

Management Plan
Ref to Ortho consult
Bland diet/
Advised MRI scan of the left knee

Diagnosis
5355 GASTRITIS. MAIN*
844 SPRAIN OF KNEEA LEG*, MAIN,*
Left?? OA
8440 SPRAIN LATERAL COLL LIG, MAIN,*
LEFT KNEE
7171 DERANG ANT MED MENISCUS,zClinical,*
LEFT KNEE

Orders

x x x xElmetacin solution 50 ml.12 Qty = 1, Verified

Celebrex 200 Mg. Cap,13 Qty = 20, Verified

In February of 2008, Apines once again complained of pain in his left knee and
requested for a medical check-up when the ship reached Jubail, Saudi Arabia. 15 Dr.
Vicar Hussain's (Dr. Hussain) Medical Report 16 dated February 5, 2008 indicates
the following:
Sym[p]toms: PAIN ON THE LEFT KNEE (M.R.I. SCAN - LEFT KNEE
RECOMMEND).

When did the sym[p]toms start: Pain & swells 14 [left] knee - 4 mth

Diagnosis: O.A. 14 [left] knee x x x

Is declared:   FIT           Yes      No     but Pt needs rest for couple of days

                   UNFIT       Yes      No

1) The patient must attend the Doctor again on: after 7 days

2) The seaman must go to Hospital for [MRI SCAN - LEFT KNEE]

3) Special Remarks: Medical & Pt needs MRI 14 [left] knee. Pt needs

medication for long time

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Apines claimed that since the pain in his left knee even worsened, he requested for
immediate repatriation.18

In Capt. Castañares' e-mail message 19 sent to ESPI and Capt. Nicolo Terrei on
February 5, 2008, it was stated that for a week already, Apines had been unable to
work due to severe pain on his left knee. Per request, Apines had a medical check
up in Jubail, Saudi Arabia. The doctor diagnosed Apines to be suffering from
arthritis. Apines insisted that it was not merely arthritis, but the doctor was not able
to determine any other ailment. Consequently, the doctor assessed Apines to be fit
for sea duty. However, due to the worsening pain and inability to work, Apines
requested to be promptly sent home to be able to consult with a doctor on his own
account. Thus, Capt. Castañares sought Apines' repatriation to be arranged even if
there was still no reliever to take the latter's place.

ESPI, however, denied that Apines had an accidental injury while on board the
ship. In the Affidavit20 dated May 4, 2008 and e-mail message 21 sent to ESPI on
November 4, 2008, Capt. Castañares stated that in the duration of Apines' stay in
the ship from September 15, 2007 to February 6, 2008, there was no report that the
latter had figured in an accident or had sustained an injury. 22

Apines disembarked from the ship on February 7, 2008. The next day, Apines
reported to ESPI's office.23 Teresa Mendoza (Mendoza) conducted an exit
interview, and her report is partly quoted below: Accdg. to crew:

- [D]uring an inspection on[ ]board, [he] had an accident when he slid and his knee
had a strong contact against [the] steel railing of the ladder. He had a sprain and
his ankle went swollen for four days (Sept.) His knee started to be painful on
November. However, he can perform job on[ ]board but he [cannot] fully work and
he is already moving slowly. [He] [f]inds [it] difficult to climb on cranes due to pain in
the ankle.- attached report (No report was given by the master regarding the
incident, no evidence from Master's logbook)

- was given pain reliever by the doctor (for arthritis and paracetamol)

- and was recommended to see doctor again after seven days but he [was]
repatriated after x x x a day.

- was reported FIT TO WORK by the doctor.24

The Crew De-briefing Checklist 25 signed by Apines also indicated that his
disembarkation was "for medical grounds (on his own request)."

ESPI claimed that it referred Apines to a company-designated doctor, but the latter
consulted his own physicians instead.26

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On the other hand, Apines alleged that when he reported to ESPI's office right after
his repatriation, Mendoza and Angela Padre (Padre) informed him that since he
was declared fit to work, no assistance can be offered to him. Moreover, his unpaid
salaries shall be offset against the cost of his airfare ticket in returning to Manila.
Apines, thus, explained that he sought repatriation to undergo Magnetic Resonance
Imaging (MRI) and obtain medical treatment pursuant to the recommendations of
the doctors in Bahrain and Saudi Arabia. ESPI, however, stood its ground in
denying to provide Apines with assistance. 27

Apines felt aggrieved by ESPI's lack of support, but his primary concern then was
to obtain prompt medical attention. Upon his inquiry, ESPI referred him to
Metropolitan Hospital, which at that time had no MRI machine. Apines thereafter
proceeded to Chinese General Hospital (CGH), where he underwent MRI scanning
under the supervision of Dr. Celestina L. Cejoco (Dr. Cejoco). 28 Dr. Cejoco's
Consultation Report,29 dated February 14, 2008, included the following
impressions: (1) "no acute bony trabecular injury or fracture"; (2) "oblique inferior
surface tear involving the posterior horn of the medial meniscus"; (3) "small to
moderate amount of joint effusion"; and (4) "findings are consistent with
osteoarthritis."

On February 20, 2008, Apines also consulted Dr. Patrick O. Leh (Dr. Leh), an
orthopedic surgeon in CGH. The Medical Certificate 30 issued by Dr. Leh indicated
that Apines had "degenerative osteoarthritis" and "medial meniscal tear" in his left
knee. Dr. Leh assessed that Apines "may return to work after 30 [to] 45 days," but
"needs continued medical treatment for osteoarthritis." Apines was likewise advised
to undergo meniscectomy31 and to consult with a company-accredited orthopedic
surgeon.32

On June 6, 2008, Apines filed before the National Labor Relations Commission
(NLRC) a Complaine33 for total and permanent disability benefits, reimbursement of
medical, hospital and transportation expenses, moral and exemplary damages,
sickness allowance, attorney's fees and legal interest.

On June 17, 2008, Apines was admitted at the Philippine General Hospital (PGH)
and underwent arthroscopic meniscectomy on July 1, 2008. He was confined for 17
days and was finally discharged on July 4, 2008.34

The Clinical Abstract35 and Discharge Summary36 signed by Dr. Patrick M. Dizon

(Dr. Dizon) stated that Apines had Medial Meniscal Tear. Apines complained of
pain in his left knee and difficulty in ambulation. Apines had informed the doctors
that about nine or ten months before, he had slipped and twisted his left knee while
walking or going down the stairs. Thereafter, he had persistent pain in his left knee,
with associated locking symptoms. He only took Alaxan which gave him mere
partial relief. The symptoms, however, progressed. Apines then underwent x-ray
and MRI scans, and consulted with doctors at the CGH, before having been
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referred to the PGH for further management. After Apines' arthroscopic
meniscectomy, he was still advised to continue with his rehabilitation, and was
prescribed to take Cephalexin for seven days.

In their Position Paper37 filed before the NLRC, the respondents contended that
Apines was not entitled to total and permanent disability benefits based on the
following grounds: (1) Apines did not suffer any accident or injury while on board
the ship as proven by Capt. Castañares' affidavit and the e-mail exchanges
between the latter and Mendoza; (2) the medical reports issued abroad showed
that Apines was fit to work; (3) Apines disembarked from the ship on his own
accord as indicated in the Exit Interview Report and Crew De-briefing Checklist; (4)
Apines failed to submit himself for post-employment medical examination and
treatment by company-designated doctors; and (5) Apines' own physician, Dr. Leh,
assessed that the former may return to work after 30 to 45 days.

Several conferences were held, but the parties failed to arrive at any settlement. 38

Rulings of the Labor Arbiter and NLRC

In the Decision39 dated April 21, 2009, the Labor Arbiter (LA) dismissed Apines'
complaint citing the following as reasons:
It is not enough for [Apines] to allege and prove that his injury was work-related.

He must likewise allege and prove compliance with the mandatory reporting
requirement.

[Apines] never alleged, in his position paper, that he observed the mandatory
reporting requirement. He simply states that, upon his repatriation, he reported to
[ESPI] and was informed by [Padre] and [Mendoza] that he cannot be offered of
[sic] an assistance as he was declared fit to work.

There is nothing in the position paper and further papers of [Apines] indicating
compliance with the post-employment medical examination [under the 2nd and 3rd
paragraphs of Section 20(8)(3)40 of the 2000 Philippine Overseas Employment
Agency's Amended Standard

Terms and Conditions Governing the Employment of Filipino Seafarers On-Board

Ocean-Going Vessels].41 Apines appealed the foregoing before the NLRC. 42

On December 14, 2009, the NLRC promulgated a Decision, 43 the fallo of which is

quoted below:
WHEREFORE, premises considered, judgment is hereby rendered finding the
appeal impressed with merit. [The respondents] are hereby directed to pay [Apines]
US$62,800.00 [as] total and permanent disability compensation and sickness
allowance or its peso equivalent at the prevailing exchange rate at the time of
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payment plus ten percent (10%) of such aggregate amount representing attorney's
fees (US$6,280.00). Accordingly, the decision of the [LA] dated April [21], 2009 is
hereby VACATED and SET ASIDE.
SO ORDERED.44

In holding Apines to be entitled to total and permanent disability benefits and

sickness allowance, the NLRC ratiocinated that:

[Apines] was operated upon on July 1, 2008 at the PGH x x x. Since his repatriation
on February 2008 until such date, he has not been able to return to work and x x x
more than 120 days [had elapsed]. x x x

We do not subscribe to [the respondents'] assertions that [Apines] has to prove that
he suffered an accident while on board and that the repatriation was of his own
accord[,] which bars his entitlement. x x x

It does not state in [Section 20(B)(3) of the 2000 Philippine Overseas Employment
Agency's Amended Standard Terms and Conditions Governing the Employment of
Filipino Seafarers On-Board Ocean-Going Vessels] that repatriation be upon the
employer's instructions, [but] it merely mentions that it be for medical reasons.
There is also no requirement of proof of occurrence of an accident to be made by
the employee for disability to attach. What is required is that he suffered injury or
illness and in this case[,] there is [a] concrete showing that [Apines] was
complaining of pain in his knee[,] and that he made it known to his employers for
which he was brought to 2 doctors for assessment on November 2007 and
February 2008.

It is noteworthy that these doctors recommended that he undergo MRI x x x[,] but it
appears that these recommendations were unheeded. It is apparent from the
records that the [respondents] chose to ignore the complaints of the seafarer
[about] the pain he was suffering [from] and the doctors' recommendations[,] and
decided not to order his medical repatriation presumably in order to avoid paying
disability compensation to him.

While it may be true that there was no compliance with the procedural requirements
under [Section 20(B)(3) of the 2000 Philippine Overseas Employment Agency's
Amended Standard Terms and Conditions Governing the Employment of Filipino
Seafarers On-Board Ocean-Going Vessels], this is not of [Apines'] own doing. x x x
He was informed that he will not be accorded any medical assistance as he [was]
declared fit to work. Thus, he was constrained to consult with other doctors [who
assessed Apines] to be suffering from a meniscal tear on his knee and required
menis[c]ectomy x x x. [Apines'] assertions [sic] that he was denied medical
assistance [has] credence because it is illogical that he will seek treatment from
other doctors immediately after his disembarkation when he [can] avail of the

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services of the company[-]designated physician. He arrived on February 8, 2008
and he consulted with 2 doctors for medical treatment on February 14 and 20,
2008. The proximity of such dates further proves that he was indeed denied of
medical assistance despite his suffering and even when the [respond nts] knew that
he sought repatriation to seek medical treatment x x x.

Having suffered the injury/illness during the term of his contract, [Apines] is also
entitled to his sickness allowance and to be reimbursed [for] the expenses incurred
for his treatment. In this case, [Apines] failed to present receipts or other proofis] of
his medical expenses[, hence,] we cannot grant the same. Thus[,] he is entitled
only to his sickness allowance of US$700.00/per month for four (4) months or
US$2,800.00 in addition to his permanent and total disability compensation of
US$60,000.00.45
In the Resolution46 dated April 14, 2010, the NLRC denied the motion for
reconsideration47 of the respondents.

The Proceedings before the CA

The respondents filed a Petition for Certiorari48 before the CA. During its pendency,
Apines sought the execution of the NLRC Decision and Resolution, dated
December 14, 2009 and April 14, 2010, respectively. On August 10, 2010, the
respondents, with the intent of preventing further execution proceedings, paid
Apines the sum of Three Million Twenty-Nine Thousand Eighty-Eight Pesos and
92/100 (P3,029,088.92) as full and complete satisfaction of the NLRC's judgment
award. The payment was subject to the condition that in case of reversal or
modification of the NLRC decision and resolution by the CA, Apines shall return to
the respondents whatever amount may be due and owing. 49

Subsequently, the CA, through the herein assailed decision and resolution,
reversed the NLRC ruling. The CA explained that: [Apines] was unable to
establish his allegation that he suffered an injury on board [ETAL's] vessel by
reason of an accident. x x x [I]t was clear that other persons were present at the
time the alleged incident transpired and who should have witnessed the same. x x x
[H]e neither reported the alleged incident to the officers on board the vessel for
documentation purposes nor did he present any other evidence to substantiate his
allegation. Not even the evaluation of the doctors who examined [Apines]
corroborated his claim that his condition was an injury caused by an accidental fall.
[Apines] himself declared that Dr. Hussain gave him medicine for pain allegedly
caused by arthritis. His own doctor seemed to agree with Dr. Hussain's findings
when he categorically pronounced [Apines'] diagnosis to be "Degenerative
osteoarthritis." Moreover, contrary to Apines' claim, his doctor did not recommend
his "immediate operation." In fact, Dr. Leh suggested that [Apines] consult with [a]
company-accredited orthopedic surgeon for opinion. In other words, a perusal of
the medical certificates submitted by [Apines] will tend to support a finding that
Apines was suffering from arthritis rather than a conclusion that his medical
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condition was brought about by an accident as to qualify as work-related injury
compensable under the POEA-SEC.

[Apines] affirms that [the respondents] "referred him to Metropolitan

Hospital. He proceeded there immediately but upon inquiry, they do not conduct
MRI test, instead he was referred to [CGH]." It appears that [Apines] conveniently
subjected himself to medical assistance of his own choice solely because
Metropolitan Hospital was unable to conduct the MRI. Noticeably, there is nothing
on record to show that he intended to submit himself to a medical evaluation by the
company-designated physician. [Apines] clearly has not complied with the post-
employment reporting requirements under the POEA-SEC.

[Apines] failed to present any justification [for] his inability to submit himself
to a post-employment medical examination by a company-designated
physician. Glaringly, despite claiming that his doctor recommended his immediate
operation when he went for consultation on February 20, 2008, it was only on June
17, 2008 that [Apines] was admitted for confinement at the PGH and the operation
done on July 1, 2008. x x x

[I]n between his consultation with his doctor on February 20, 2008 and his
confinement for medical attention on June 17, 2008, [Apines] found time to file
the instant case before the [LA] on June 5, 2008. x x x [Apines] appeared well
enough to consult his own doctors, file a case x x x and undergo medical attention
more than three (3) months from his repatriation but was unjustifiably unable to
submit himself for examination by a company-designated physician.

 [Apines] has not presented any disability grading even from his own doctors
who examined and operated on him. It seems to this Court then that [Apines]
basically aims to capitalize on his employer's failure to assess his disability grade
when, as a matter of fact, he has never submitted himself to the examination of the
company-designated physician before or after his operation. Plainly, there is no
disability grading by any doctor in this case.

Issues

Aggrieved, Apines now presents before the Court the Issues of whether or not the
CA erred in:
(1) holding that failure to comply with the 72-hour reporting requirement is fatal and
shall automatically result in the forfeiture of disability benefits; 51

(2) denying to grant Apines total and permanent disability benefits despite his clear
inability to resume performance of active sea duties within 120 days from
repatriation;52 and

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(3) negating Apines' entitlement to moral and exemplary damages, as well as
attorney's fees.53
In support thereof, Apines reiterates his claims offered in pnor proceedings. He
emphasizes that the respondents cannot feign ignorance about his ailment, which
started while he was on board the ship. He insists that there should be no
automatic forfeiture of disability benefits even sans compliance with the 72-hour
reportorial requirement in cases when the seafarer has been rendered incapable of
pursuing his customary shipboard employment. Anent the respondents' persistent
stance that the company-designated doctor must examine the seafarer's medical
condition, Apines avers that such assessment must be done within a 120-day
period from repatriation, otherwise, the injury or illness shall be deemed to be total
and permanent. He also laments the respondents' utter refusal to render any
medical assistance and pay their contractual obligations. Accordingly, the
respondents should be liable for moral and exemplary damages, plus attorney's
fees. Apines manifests, too, that he currently remains jobless and unfit to render
sea duties.

In the respondents' Comment,54 they contend that the 72-hour reportorial

requirement is mandatory, and Apines' failure to comply therewith bars the filing of
his claims for disability benefits.

Ruling of the Court

"As a rule, only questions of law, not questions of fact, may be raised in a petition
for review on certiorari under Rule 45."55 The Court is, thus, generally bound by the
CA's factual findings. There are, however, exceptions to the foregoing, among
which is when the CA's findings are contrary to those of the trial court or
administrative body exercising quasi-judicial functions from which the action
originated.56 The instant petition falls under the aforementioned exception in view of
the divergent factual findings of the LA and the CA, on one hand, and the NLRC, on
the other.

After a thorough re-examination of the parties' evidence, the Court finds merit in the
instant petition warranting the reinstatement of the NLRC's decision.

The issues, being inter-related, will be discussed jointly.

Review of the Facts

To properly dispose of the issues raised herein, the Court should resolve the
conflicting factual assertions of the parties anent the following: (1) occurrence of the
accident, which Apines claimed had caused his injury; (2) cause of and
circumstances surrounding Apines' repatriation; (3) conclusiveness of the medical
findings of the two doctors whom Apines had consulted in Bahrain and Saudi
Arabia; (4) referral of Apines to company-designated doctors; (5) failure of Apines
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to comply with the 72-hour reportorial requirement; (6) necessity, reason and
timeliness of the medical treatment rendered by Apines' own doctors; and (7) lack
of disability rating made by both the company-designated doctors and those
consulted by Apines on his own accord.

Occurrence of the accidental injury on board the ship

The respondents insist that Apines had not sustained any injury while on board
ETAL's ship. As proof thereof, Capt. Castañares' affidavit and e-mail message
negating the occurrence of an accident involving Apines were submitted. The
respondents also point out that Apines had not offered any corroborating
statements anent the incident from his colleagues who were then on board the
ship. Hence, the respondents conclude that since no documentary evidence from
ESPI and its staff support Apines' factual claim of having sustained an injury while
on board the ship, then, no accident actually happened. 57

The evidence point to the contrary.

While no record of the injury was reflected in the ship's logbook and other
documents, the following constitute as substantial evidence to support the
conclusion that Apines, in fact, figured in an accident while he was on board.

First. In the Medical Report58 dated November 10, 2007, Dr. George declared
Apines to be fit to work. It is, however, clear from the same report that Apines
complained of pain and swelling in his left knee, which started after a fall while he
was at work about 45 days before such consultation. Dr. George also made
a conditional diagnosis of Medial Meniscal Injury, prescribed two pain relief
medications, and gave Apines a hinged knee brace. Dr. George further advised the
conduct of MRI scanning and consultation with an orthopedic doctor.

In February of 2008, Apines requested for a medical check-up. 59 Dr. Hussain

indicated in his report that Apines had pain and swelling for four months prior to the
consultation. Dr. Hussain once again recommended MRI scanning, rest for a
couple of days, and medications for a long time. Nonetheless, he assessed that
Apines was fit to work.60

In Bahrain and Saudi Arabia, Apines was consistent in informing the doctors about
when and how he sustained his injury. On the other hand, despite rendering fit-to-
work assessments, Dr. George and Dr. Hussain's similar recommendations for MRI
scanning were implied admissions that Apines had a medical condition, albeit still
undefined. Without MRI, Dr. George and Dr. Hussain cannot make conclusive
assessments of what really ailed Apines. Note that despite the doctors'
recommendations in November of 2007 and February of 2008, no MRI scan was
conducted and paid for abroad by the respondents.

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Second. The day after Apines' repatnation, he reported to ESPI's office. In the Exit
Interview61 conducted by Mendoza, Apines once again claimed that while on board
the ship, his knee hit the steel railings of the ladder. His ankle swelled in September
of 2007 and by November of 2007, the pain had worsened, making it difficult for
him to move and climb cranes.

Further, the Crew De-briefing Checklist 62 signed by Apines likewise indicated that
his disembarkation was "for medical grounds (on his own request)." Whether the
repatriation was upon Apines' own initiative or not, the unalterable fact remains that
he had a medical condition, which required treatment.

Third. In the Discharge Summary63 dated July 5, 2008, Dr. Dizon stated that
according to Apines, he slipped and twisted his left knee about nine months before
meniscectomy. Dr. Dizon confirmed the prior diagnosis of Dr. George, Dr. Cejoco
and Dr. Leh that Apines had Medial Meniscal Tear in the latter's left knee.

In precis, Apines' consistent claims about what occurred while he was on board the
ship, and the medical records showing that he had Medial Meniscal Tear
substantially lend credence to the factual assertion that indeed, he sustained an
accidental injury prior to his repatriation. Capt. Castañares' mere statements pale in
comparison to the foregoing.

Fit-to-work assessments, reporting after repatriation, consultations with

doctors, surgery, and compliance with the requirements of the 2 nd and
3rd paragraphs of Section 20(B)(3) of the 2000 Philippine Overseas
Employment Agency's Amended Standard Terms and Conditions Governing
the Employment of Filipino Seafarers On-Board Ocean-Going Vessels (2000
POEA-SEC)

The Court shall now proceed to discuss the bearing of Dr. George and Dr.
Hussain's uniform assessment that Apines was fit to work.

As mentioned above, Dr. George and Dr. Hussain both recommended MRI
scanning of Apines' left knee. Note that Dr. George made a conditional diagnosis
that Apines had osteoarthritis, albeit entertained the possibility of Medial Meniscal
Tear. Hence, Capt. Castañares' declaration that the doctors did not find any other
ailment in Apines apart from osteoarthritis deserves short shrift. The fit-to-work
assessment made by Dr. George and Dr. Hussain remained inconclusive pending
the conduct of the MRI scan. Unfortunately, the same fit-to-work assessment was
used by the respondents against Apines in denying the latter's plea for medical
assistance after his repatriation. Later, the MRl scanning was performed only after
repatriation about five months from the time Apines had sustained the accidental
injury. Apines himself even paid for the scan.

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Within three days from repatriation, Apines reported to ESPI's office. Mendoza
conducted an Exit Interview and made Apines sign the Crew De-briefing Checklist.
The parties now disagree as to what transpired after.

Apines claims that Mendoza and Padre infonned him that since he was declared fit
to work by the doctors abroad, ESPI cannot offer him any assistance. Further, his
unpaid salaries shall be offset against the cost of his airfare ticket in going back to
Manila. Apines insisted that he sought repatriation due to the recommendations of
the doctors abroad for him to undergo MRI scanning and obtain medical treatment.
ESPI, however, stood its ground in denying to provide Apines with assistance. 64

The respondents, on their part, allege that they referred Apines to a company-
designated doctor. However, Apines consulted his own physicians instead. 65 Ann
Suzette B. Ong Pe (Ong Pe), Senior Patient Processor at the Marine Medical
Services, executed an affidavit attesting to the foregoing. 66

In the herein assailed decision, the CA declared that Apines "conveniently

subjected himself to medical assistance of his own choice solely because
Metropolitan Hospital was unable to conduct the MRI."67 The CA also stated that
"there is nothing on record to show that [Apines] intended to submit himself to a
medical evaluation by the company-designated physician."68

The Court disagrees.

It bears stressing that nowhere in the pleadings did the respondents specifically
name the company-designated doctor to whom Apines was referred to. Moreover,
apart from Ong Pe's affidavit, the respondents did not present any other document
to establish that Apines was actually and specifically instructed to report for a post-
employment medical examination. Apines vaguely admitted having been referred to
Metropolitan Hospital, but it was upon his insistence for medical assistance. What
remains unrefuted is that back then, the said hospital did not have MRI machines.
Consequently, Apines proceeded to the CGH, underwent MRI scanning and
consulted Dr. Cejoco and Dr. Leh. Apines paid for the medical services with his
own money.

Indeed, the records do not show that Apines consulted a company-designated

doctor either for a post-employment medical assessment or treatment. However,
there is likewise no substantial evidence conclusively, proving that Apines was in
fact referred to a company-designated physician. Besides, after suffering for about
five months with an untreated injury on board ETAL's ship, securing the services of
CGH for the MRI scanning was not a matter of convenience, but of necessity.
Apines merely wanted to obtain prompt medical attention, but was repeatedly given
the runaround by the respondents even after repatriation. As aptly observed by the
NLRC, "it is illogical that [Apines] will seek treatment from other doctors

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immediately after his disembarkation when he [can] avail of the services of the
company[-]designated physician" and "the proximity of [the dates of repatriation
and consultations with Dr. Cejoco and Dr. Leh] further proves that he was indeed
denied of medical assistance."69

As indicated in the Exit Interview and Crew De-briefing Checklist, Apines promptly
reported to ESPI's office within 72-hours from repatriation. He was informed that
the cost of his fare going home shall be offset against his unpaid salaries, anthat no
medical assistance can be offered to him as he was declared fit to work by the
doctors abroad. Admittedly, Apines failed to offer documentary proofs of the
respondents' denial to assist him in his medical needs. However, Apines cannot be
faulted for the said lack since the custody of the documents, if there were any at all,
pertains more to the respondents. It would be illogical to impose upon Apines the
burden to prove with documentary evidence the negative fact that he was not
referred to a company-designated doctor.

In Interorient Maritime Enterprises, Inc., et al. v. Remo, 70 the Court emphatically

ruled that "the absence of a post-employment medical examination cannot be used
to defeat respondent's claim since the failure to subject the seafarer to this
requirement was not due to the seafarer's fault but to the inadvertence or deliberate
refusal of petitioners."71

Considering the above, the Court finds that Apines' failure to comply with the 72-
hour reportorial requirement for the conduct of a post-employment medical
examination under the 2nd paragraph of Section 20(B)(3) of the 2000 POEA-SEC
cannot result in the automatic forfeiture of his disability benefits.

Island Overseas Transport Corporation/Pine Crest Shipping Corporation/Capt.

Emmanuel L. Regio v. Armando M. Beja,72 on the other hand, is instructive anent
when a seafarer may be exempt from compliance with the procedure laid down in
the 3rd paragraph of Section 20(B)(3) on the requirement of consultation with a third
doctor, viz.:

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.

In the case at bar, ESPI's records relative to the occurrence of the injury and the
events leading to and following Apines' repatriation are conspicuously scarce.
Apines claims that he was outrightly denied medical assistance on the pretext that
the doctors abroad had found him fit to work. There was unfortunately no document

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to establish that denial. Similarly, no convincing paper trail exists to prove that there
was in fact a referral to a company-designated doctor either for assessment or
treatment. Sans referral to a company-designated doctor, no post-employment
medical examination can be performed on Apines by ESPI. No written fit to work or
disability grading certificate was also issued. Without the assessment of the
company-designated doctor, there was nothing for Apines' own physicians to
contest rendering consultation with a third doctor agreed upon by the parties as
superfluous.

Perforce, compliance with the requirements of the 3 rd paragraph of Section 20(B)(3)

on obtaining the assessment of a third doctor in case of divergent opinions of the
company-designated doctor, on one hand, and the seafarer's own physician, on the
other, cannot be imposed upon Apines.

Entitlement to total and permanent disability benefits arising from a

conclusive presumption

Having sustained an accidental injury on board the vessel, Apines is entitled to

disability benefits. To what extent, the Court shall discuss below.

At the outset, it bears noting that Apines filed his Complaint before the NLRC on
June 6, 2008, 121 days from his repatriation. Before that date, no disability rating of
any kind had been issued by the respondents.

In Beja,74 the Court clarified that:

[I]f the maritime compensation complaint was filed prior to October 6, 2008, the
rule on the 120-day period, during which the disability assessment should have
been made in accordance with Crystal Shipping, Inc. v. Natividad, that is, the
doctrine then prevailing before the promulgation of Vergara on October 6, 2008,
stands; if, on the other hand, the com.fslaint was filed from October 6, 2008
onwards, the 240-day rule applies.75 (Citation omitted and emphasis ours)
In the instant case, Apines filed his Complaint on June 6, 2008. Hence, the 120-day
period rule stands. Due to ESPI's failure to issue a disability rating within the 120-
day period, the presumption of Apines' entitlement to total and permanent disability
benefits arose.

The Court shall, nonetheless, tackle the necessity and timeliness of the medical
services rendered by Apines' three doctors.

After repatriation, Apines consulted Dr. Cejoco and Dr. Leh in February of 2008.
Later, Apines underwent meniscectomy at the PGH under the care of Dr. Dizon.

The respondents point out that Dr. Leh indicated in the Medical Certificate, which
he issued, that Apines can return to work after 30 to 45 days. According to the

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respondents, this should cast doubt upon Apines' claim for total and permanent
disability benefits. Moreover, none of Apines' own doctors issued a disability rating.

In the herein assailed decision, the CA, relying on the medical certificates issued by
the doctors, found that Apines was merely suffering from osteoarthritis, and not
from the effects of an accidental injury. The CA likewise concluded that Apines
"aims to capitalize on his employers failure to assess his disability grade when, as
a matter of fact, he has never submitted himself to the examination of the
company-designated physician before or after his operation."76 The CA also noted
that Apines consulted Dr. Leh on February 20, 2008, but it was only on July 1, 2008
when the meniscectomy was performed. In the intervening period, Apines did not
consult with the company-designated doctor, but found the time to see his own
physicians and file his Complaint before the NLRC. 77

In Dr. Cejoco's Consultation Report 78 dated February 14, 2008, it was stated that
Apines had "no acute bony trabecular injury or fracture," but diagnosed the latter to
be suffering from "Osteoarthritis," "oblique inferior surface tear involving the
posterior horn of the medial meniscus," and "small to moderate amount of joint
effusion." Dr. Leh confinned Dr. Cejoco's impressions, and suggested
meniscectomy, with further consultation with a company-accredited orthopedic
surgeon.79 Dr. Dizon's final diagnosis was Medial Meniscal Tear of the left knee,
which required arthroscopic meniscectomy.80

A meniscus, which is a cartilage disk found in the knee, functions as a shock

absorber or cushion to minimize the stress on the articular cartilage. The articular
cartilage coats the ends of the bones, so it is present at the bottom of the femur
and on top of the shinbone or the tibia. There are two menisci. If they are not
present or torn, the articular cartilage sees an increase in stress and can trigger the
onset of osteoarthritis. That is by no means the only cause of osteoarthritis.
However, it is certainly a significant contributor. 81

Likewise useful are the distinctions between acute, sub-acute and stress fractures.
An acute fracture "will often include an emergency room visit the day the trauma
occurred and are clearly evident on an x-ray." On the other hand, "a sub-acute
fracture usually means that the patient had pain for some time," and "the fracture
occurred weeks or months prior but now is in the healing stage." There are
also stress fractures, which occur mainly in the lower extremities due to impact
activity or repetitive activities. Stress fractures and healing fractures become painful
with weight bearing.82

The Court, thus, concludes that no real incompatibility exists between the doctors'
findings of osteoarthritis and absence of acute trabecular injury, on one hand, with
Apihes' having sustained an accidental Medial Meniscal Injury in his left knee while
aboard the ship, on the other. Dr. Cejoco's impression that an acute trabecular

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injury was absent did not rule out the possibility of a sub-acute or stress fracture.
Further, a tom meniscus can trigger the onset of osteoarthritis.

In Apines' case, his Medial Meniscus Tear was left undiagnosed and untreated for
almost five months from the time he had sustained an accidental injury. It took
another five months from his repatriation before he underwent arthroscopic
meniscectomy. Apines cannot be faulted for the delay. The Court takes judicial
notice of the long queues in governmental hospitals. 83 The Court also finds it logical
that without any financial assistance for medical expenses lent by ESPI, it took
Apines sometime to save up for what the surgical procedure required.

Further, the possibility that Apines' Medial Meniscal Tear triggered the onset of
osteoarthritis cannot be discounted. Under Section 32-A(16)(b) of the 2000 POEA-
SEC, for osteoarthritis to be considered as an occupational disease, the same must
have been contracted in any occupation involving minor or major injuries to the
joint. Apines' case falls within the qualification.

Relative to Dr. Leh's assessment that Apines can return to work after 30 to 45 days,
the Court finds the same as premature. Dr. Leh suggested meniscectomy and
further consultation with an orthopedic surgeon. Without having gone through the
surgery yet, Apines' fitness to return to work cannot be ascertained.

The Court likewise finds specious the CA's ruling that the lack of disability rating
issued by Apines' doctors negates his disability claims.

Due to ESPI's failure or refusal to issue a medical rating within 120 days from
repatriation, in legal contemplation, Apines' disability is conclusively presumed to
be total and permanent. Besides, in the Court's mind, it is enough that Apines
obtained medical certificates and copies of hospital records whenever he consulted
with his doctors and underwent medical procedures. The Court cannot impose
upon him the burden of knowing what the labor laws require relative to the matters
which should be explicitly stated in the medical certificates. The lack of express
disability ratings even shows that Apines did not premeditate the filing of his
Complaint and that he only procured legal services after his medical treatment.

In disability compensation claims, "what is important is that [the seafarer] was

unable to perform his customary workfor more than 120 days which constitutes
permanent total disability," since "an award of a total and permanent disability
benefit would be germane to the purpose of the benefit, which is to help the
employee in making ends meet at the time when he is unable to work."84

Apines underwent meniscectomy on July 1, 2008. Upon his discharge from the
PGH on July 4, 2008, Dr. Dizon prescribed home medications and recommended
his continued rehabilitation. Clearly, more than 120 days from repatriation, Apines'

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medical condition remained unresolved, and he cannot yet perform, without serious
discomfort and inconvenience, the customary duties of a crane operator, to wit:
Arranging; attaching; carrying; checking (ground condition and that crane is level on
the outriggers before attempting to lift and place a load; air, water and fuel gauges);
cleaning; climbing; connecting; controlling; converting; depressing (pedals); driving
(to work sites); ensuring (the setting and securing of the crane); following
(directions of signal men); inserting; inspecting; lifting; loading and unloading;
locating; lowering; lubricating (cables, pulleys, etc.); maintaining; moving (loads);
observing; operating; placing (the correct equipment under the outrigger pads of
the crane); planning; positioning; pulling and pushing; raising; repairing; replacing;
rotating; securing x x x; stacking; starting; supplying; transferring; verifying
(correctness of load)85 Generally, in every complaint, "opposing parties would stand
poles apart and proffer allegations as different as chalk and cheese;" hence, it is
"incumbent upon the Court to determine whether the party on whom the burden to
prove lies was able to hurdle the same."86

Apines hurdled the burden. The medical records, consistency of his claims, and the
circumstances before and after his repatriation overshadow the respondents'
averments anent the non-occurrence of the accidental injury and alleged unjustified
non-compliance with the 72-hour and third-doctor requirements.

In sum, the Court finds favor in Apines' claims for total and permanent disability
benefits, sickness allowance and attorney's fees. The NLRC's judgment award to
Apines in the total amount of US$69,080.00, 87 which the respondents' had
conditionally satisfied, is in order. The Court further agrees with the NLRC, which
found no ample basis to grant Apines' claims for moral and exemplary damages.

WHEREFORE, the instant petition is GRANTED. The Decision and Resolution

dated January 26, 2012 and May 30, 2012, respectively, of the Court of Appeals in
CA-G.R. SP No. 114221, which dismissed Elmer A. Apines' complaint for disability
benefits and damages, are SET ASIDE. The Decision rendered by the National
Labor Relations Commission on December 14, 2009 in NLRC LAC No. 06-000338-
09, which awarded Elmer A. Apines the total amount of US$69,080.00 as total and
permanent disability benefits, sickness allowance and attorney's fees,
is REINSTATED. Legal interest is no longer imposed on the award of
US$69,080.00 in view of the satisfaction of the amount already made on August 10,
2010.

SO ORDERED.

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[9]
G.R. No. 204422. November 21, 2016.*
 
JESUS B. VILLAMOR, petitioner, vs. EMPLOYEES’ COMPENSATION COMMISSION
(ECC) and SOCIAL SECURITY SYSTEM, respondents.
Petition for Review on Certiorari; As a rule, questions of facts may not be the subject
of an appeal by certiorari under Rule 45 of the Rules of Court as the Supreme Court (SC) is
not a trier of facts.—As a rule, questions of facts may not be the subject of an appeal
by certiorari under Rule 45 of the Rules of Court as the Supreme Court is not a trier of
facts. However, there are exceptions to this rule such as when the factual findings of the CA
are not supported by the evidence on record and/or are based on misapprehension of facts.
Such is the situation in this case.

Employees’ Compensation; Occupational Diseases; The Amended Rules on

Employees’ Compensation provides that for an illness or disease to be compensable, it must
be a result of occupational disease listed under Annex ‘A’ of these Rules with the conditions
set therein satisfied, otherwise, proof must be shown that the risk of contracting the disease
is increased by the working conditions.—The Amended Rules on Employees’
Compensation provides that for an illness or disease to be compensable, “[it] must be a
result of occupational disease listed under Annex ‘A’ of these Rules with the conditions set
therein satisfied, otherwise, proof must be shown that the risk of contracting the disease is
increased by the working conditions.” In the case of stroke and hypertension, both are
compensable since they are listed as occupational diseases under Nos. 19 and 29,
respectively, of Annex “A” of the said rules.

Same; Same; In Government Service Insurance System v. Baul, 497 SCRA 397 (2006),
the Court affirmed the claimant’s entitlement to compensation as both essential
hypertension and stroke are considered occupational diseases.—In fact, in Government
Service Insurance System v. Baul, 497 SCRA 397 (2006), where the claimant who was
diagnosed with essential hypertension later suffered a stroke, the Court affirmed the
claimant’s entitlement to compensation as both essential hypertension and stroke are
considered occupational diseases.
Same; Same; The test of proof in compensation proceedings is probability, and not the
ultimate degree of certainty. In fact, in claims for compensation, the strict rules of evidence
need not be observed as the primordial and paramount consideration should be the
employee’s welfare.—Direct evidence showing that his work and position in the union
caused his illness is not necessary. As we have consistently ruled, the test of proof in
compensation proceedings is probability, and not the ultimate degree of certainty. In fact, in
claims for compensation, the strict rules of evidence need not be observed as the primordial
and paramount consideration should be the employee’s welfare.
PETITION for review on certiorari and SUPPLEMENTAL PETITION for review on
certiorari of a decision of the Court of Appeals.

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 The facts are stated in the opinion of the Court.
   Yambot, Lopez Law Offices for petitioner.
   Rachel P. Jaboli for respondent SSS.
DEL CASTILLO, J.:

"Probability and not ultimate degree of certainty is the test of proof in compensation
proceedings."1

Before this Court are: (1) the Petition for Review on Certiorari2 and (2) the
Supplemental Petition3 filed under Rule 45 of the Rules of Court assailing the
October 31, 2012 Decision4 of the Court of Appeals (CA), Manila, in CA G.R. SP
No. 124496, which affirmed the denial of petitioner Jesus B. Villamor's claim for
Employees' Compensation (EC) Temporary Total Disability (TID) benefits under
Presidential Decree (PD) No. 626,5 as amended.

Factual Antecedents

In 1978, petitioner, with Social Security System (SSS) No. 03-4047063-3, was
employed by Valle Verde Country Club, Inc. (VVCCI). 6

On November 3, 2006, he was brought to Our Lady of Lourdes Hospital, Manila,

due to dizziness associated with numbness and weakness on his left arm and
leg.7 His Cranial Computed Tomography (CT) scan revealed that he had an "acute
non-hemorrhage infarct on the right pons/basal ganglia." 8

After more than a week of confinement, 9 petitioner was discharged from the said
hospital with diagnoses of Hypertension Stage 1; Cerebro-Vascular Disease (CVD)
Acute, Non-Hemorrhagic Infarct Right Pons and Right Basal Ganglia;
Dyslipidemia10 (abnormal levels of lipids [cholesterol triglycerides, or both] carried
by lipoproteins in the blood).11

Ruling of the Social Security System

On March 9, 2007, petitioner filed before respondent SSS, Pasig City Branch,
claims for sickness benefits under the SSS law and the EC TID benefits under the
EC law for his CVD or stroke, Infarct Hypertension. 12 Respondent SSS Pasig
Branch granted his claim for sickness benefits under the SSS law. 13 However, it
denied his claim for EC TTD benefits on the ground that there is no causal
relationship between his illness and his working conditions. 14

On August 18, 2011, respondent SSS Pasig Branch endorsed petitioner's records
for further evaluation to respondent SSS-Medical Operations Department (SSS-
MOD) but the latter denied the claim in a letter 15 dated August 26, 2011 for lack of a
causal relationship between petitioner's job as clerk and his illness. 16 Respondent
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SSS-MOD also noted that petitioner's smoking history, alcoholic beverage drinking
habit, and poor compliance with anti-hypertensive medication increased his risk of
developing his illness.17

Ruling of the Employees' Compensation Commission

Petitioner appealed the denial of his claim to respondent Employees'

Compensation Commission (ECC).18

On November 28, 2011, respondent ECC rendered a Decision 19 affirming the denial
of petitioner's claim due to his failure to adduce substantial evidence that his stroke
was work-related. Respondent ECC ruled that petitioner's illness was a "result of
complications expected from a progressive disease, atherosclerosis, enhanced by
major risk factors such as history of cigarette smoking and findings of
dyslipidernia."20

Petitioner moved for reconsideration but respondent ECC denied the same as the
filing of a motion for reconsideration is not allowed under Rule 5, 21 Section 11 of the
Rules of Procedure for Filing and Disposition of Employees' Compensation
Claims.22

Ruling of the Court of Appeals

Unfazed, petitioner elevated the matter to the CA via a Petition for Review 23 under
Rule 43 of the Rules of Court.

On October 31, 2012, the CA rendered a Decision 24 affirming the denial of

petitioner's claim for EC TID benefits under PD No. 626, as amended. The CA
quoted the findings of respondent ECC and ruled that in view of its expertise, its
findings are binding on the CA. 25 The CA also said that petitioner's arguments are
mere rehashes of the arguments he raised before respondent ECC and that the
failed to show that respondents ECC and SSS overlooked factual matters that
would warrant the reversal of their findings.26

Issue

Hence, petitioner filed the instant Petition and Supplemental Petition under Rule 45
of the Rules of Court contending that the CA erred in denying his claim for EC TTD.

Petitioner's Arguments

Petitioner avers that his illnesses, stroke and essential hypertension, are both
compensable diseases under ECC Resolution No. 432. 27 He claims that his illness,
essential hypertension, is compensable without need of any proof of a causal

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relationship between his work and his illness because it is an occupational disease
listed in Annex "A" of ECC Resolution No. 432. 28 His stroke is likewise
compensable since he was able to prove by substantial evidence that it is work-
related.29 He insists that contrary to the findings of respondents SSS and ECC, he
is not a mere clerk assigned in the front desk. 30 The truth is that he is the Sports
Area In-Charge tasked to deal with the needs and complaints of the club members
and their guests who wish to use the club's facilities. 31 He asserts that his work
involves mental pressure and physical activity since he has to cater to the needs
and complaints of different personalities of club members and their guest. 32 In
addition, he is the President of the VVCCI Employees Union and, on behalf of the
union, has filed several cases against VVCCI, 33 Due to his position in the union, he
was subjected to all forms of harassment in the workplace, prompting him to file
cases against VVCCI before the National Labor Relations Commission. 34 His work
and his position in the labor union caused him to experience tremendous stress
that affected his health, develop hypertension, and suffer a stroke. 35

Petitioner also belies the findings of respondents SSS and ECC that he is a chronic
smoker and drinker.36 He admits that he was a smoker but insists that he stopped
smoking in 1995.37 He also admits drinking alcoholic beverages but only
occasionally.38 In any case, petitioner argues that the fact that he was a smoker
and a drinker should not bar him from claiming compensation. 39

Respondents' Arguments

Respondents SSS and ECC, in essence, contend that petitioner is not entitled to
compensation as he failed to prove by substantial evidence that his illness is work-
related.40 They also contend that petitioner raised factual matters, which are not
proper in a petition for review on certiorari,41 and that petitioner's arguments are
mere reiterations of his previous arguments. 42

Our Ruling

The Petition has merit.

As a rule, questions of facts may not be the subject of an appeal by certiorari under

Rule 45 of the Rules of Court as the Supreme Court is not a trier of
facts.43 However, there are exceptions to this rule such as when the factual findings
of the CA are not supported by the evidence on record and/or are based on
misapprehension of facts.44 Such is the situation in this case.

Petitioner was not a mere clerk at the time he suffered a stroke.

The denial of petitioner's claim is based on the factual finding of respondents SSS
and ECC that he is a mere clerk of VVCCI, responsible for the issuance of

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vouchers and receipts to its member. 45 Based on this, respondents SSS and ECC
ruled that in the absence of any substantial evidence showing the causal
relationship between his stroke and the clerical nature of his work, petitioner is not
entitled to his claim. 46 This factual finding, however, is not supported by the
evidence on record.

In 1978, VVCCI employed petitioner as a waiter. 47 It then transferred him to the
Sports Department as Sports Dispatcher, and later, promoted him as Sports Area
In-Charge.48 His Identification Card49 and SSS Employees' Notification Form B-
30050 both prove his claim that his position at the club is not a mere clerk, but is a
Sports Area-In-Charge. In fact, his Job Description 51 proves that his work is not
limited to issuing vouchers and receipts to club members, but includes the following
duties and responsibilities:

Basic Function:

Follow all house rules regarding order, use of sports facilities and strictly enforce
proper sports attire. Monitor area assigned (i.e. cleanliness, availability of courts for
member use, equipment, events). Coordinates with Shift Leader.

Specific duties and responsibilities:

1. Recognizes and implements all house rules regarding order and use of
sports facilities. Sees to it that proper attire is strictly followed.

2. Takes note of any changes in the status of accounts of the Club

members, which are circulated by the Adrninistn1tion and Accounting
Offices and makes the necessary adjustments as the situation dictates.

3. Keeps record of court playing time by members, dependents, and

sponsored guests. Makes sure that all charges are properly receipted and
signed by the member concerned.

4. Sees to it that non-members are properly sponsored and charged.

5. Ensures that proper guest rate is applied, charged, paid for, and turned-
over to the Cashier at the end of the shift.

6. Refers any complaint received from members concerning the

facilities/staff to the Sports Supervisor.

7. Makes the necessary arrangements during tournaments.

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 8. Coordinates with F&B captain waiter concerning any F&B services as
arranged by the client.

9. Cleans and maintains all facilities/equipment in the assigned area.

10. Reports any repair needed in the sports facilities.

11. Turns on lights when members/sponsored guests are in the court area
and switches off lights after use.

12. Ensures that clean drinking water and glasses are available at all times
for use of members/guests.1âwphi1

13. Perform other works as assigned by the Sports Supervisor.

Based on the foregoing, it is clear that contrary to the findings of the respondents
SSS and ECC, petitioner's job is not a mere clerk issuing vouchers or receipts. His
duties and responsibilities as Sports Area In-Charge are obviously laborious and
stressful since he is tasked to cater to the needs of all club members and their
guests, and to coordinate with the other departments of the club regarding their
needs. He also receives the complaints and requests of club members and their
guests, and ensures that these complaints and requests are properly addressed.
To do all these, he has to move around the club and deal with the club members
and their guests. Obviously, he has to endure both physical and mental stress in
order to perform his duties.

Aside from his position as Sports Area In-Charge, petitioner is also the President of
the VVCCI Employees Union since 1984, except for the period 2000-2004. 52 As the
president of the union, he was subjected to harassment and unfair labor tactics of
the management of the club. In fact, when petitioner suffered a stroke, there were
four pending cases filed by him, on behalf of the union and in his own personal
capacity, to wit:

a. Jesus B. Villamor v. Valle Verde Country Club, Inc. - NLRC-NCR Case No. 00-
0504064-05;

b. Jesus B. Villamor v. Valle Verde Country Club, Inc. – NLRC-NCR Case No. 00-
05-04402-06;

c. VVCCIEU and Jesus Villamor v. Valle Verde Country Club, Inc. –NLRC-NCR
Case No. 10-05594-2001; and

d. VVCCIEU v. Valle Verde Country Club, Inc. – CA-G.R. SP No. 53189. 53

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Taking into account the foregoing facts, the Court finds that the CA seriously erred
in affirming the factual findings of the respondents SSS and ECC that petitioner is a
mere clerk and that the nature of his work did not affect his health; these factual
findings are not supported by the evidence on record and are based on
misapprehension of facts.

Having discussed the true nature of petitioner's work, the Court shall now proceed
to determine whether petitioner is entitled to his claim for EC TTD benefits under
PD No. 626, as amended.

Petitioner is entitled- to his claim for EC TTD benefits under PD No. 626, as
amended.

The Amended Rules on Employees' Compensation provides that for an illness or

disease to be compensable, "[it] must be a result of occupational disease listed
under Annex 'A' of these Rules with the conditions set therein satisfied, otherwise,
proof must be shown that the risk of contracting the disease is increased by the
working conditions."54 In the case of stroke and hypertension, both are
compensable since they are listed as occupational diseases under Nos. 19 55 and
29,56 respectively, of Annex "A" of the said rules.

In fact, in Government Service Insurance System v. Baul 57 where the claimant who
was diagnosed with essential hypertension later suffered a stroke, the Court
affirmed the claimant's entitlement to compensation as both essential hypertension
and stroke are considered occupational diseases. The Court ruled that:

Cerebro-vascular accident and essential hypertension are considered as

occupational diseases under Nos. 19 and 29, respectively, of Annex 'A' of the
Implementing Rules of P.D. No. 626, as amended. Thus, it is not necessary
that there be proof of causal relation between the work and the illness which
resulted in the respondent's disability. The open-ended Table of Occupational
Diseases requires no proof of causation. In general, a covered claimant suffering
from an occupational disease is automatically paid benefits.

However, although cerebro-vascular accident and essential hypertension are listed

occupational diseases, their compensability requires compliance with all the
conditions set forth in the Rules. In short, both are qualified occupational diseases.
For cerebro-vascular accident, the claimant must prove the following: (1) there
must be a history, which should be proved, of trauma at work (to the head
specifically) due to unusual and extraordinary physical or mental strain or event, or
undue exposure to noxious gases in industry (2) there must be a direct connection
between the trauma or exertion in the course of the employment and the cerebro-
vascular attack; and (3) the trauma or exertion then and there caused a brain
hemorrhage. On the other hand, essential hypertension is compensable only if it

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causes impairment of function of body organs like kidneys, heart, eyes and brain,
resulting in permanent disability, provided that, the following documents
substantiate it: (a) chest X-ray report; (b) ECG report; (c) blood chemistry report; (d)
funduscopy report; and (e) C-T scan.

The degree of proof required to validate the concurrence of the above-

mentioned conditions under P.D. No. 626 is merely substantial evidence, that
is, such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion. What the law requires is a reasonable work-connection
and not direct causal relation. It is enough that the hypothesis on which the
workmen's claim is based is probable. As correctly pointed out by the
CA, probability, not the ultimate degree of certainty, is the test of proof in
compensation proceedings. For, in interpreting and carrying out the provisions of
the Labor Code and its Implementing Rules and Regulations, the primordial and
paramount consideration is the employee's welfare. To safeguard the worker's
rights, any doubt as to the proper interpretation and application must be resolved in
(his] favor. (Emphasis supplied)58

Taking the cue from the Baul case, the Court finds that petitioner is entitled to
compensation for his illness. Just like in Baul petitioner was diagnosed with
hypertension and stroke, as evidenced by his medical reports: Cranial CT
Scan,59 Chest X-Ray Result,60 Laboratory or Blood Chemistry Result, 61 and
Electrocardiogram Result.62 He was also able to show that his work and position in
the union caused him physical and mental strain as he had to deal with the
demands of various types of people. Thus, there is a probability that his work and
position in the union increased his risk of suffering a stroke, which affected his
brain, caused cerebral infarctions, paralysis of the left side of his body, difficulty in
speaking, and loss of muscular coordination.

Direct evidence showing that his work and position in the union caused his illness is
not necessary. As we have consistently ruled, the test of proof in compensation
proceedings is probability, and not the ultimate degree of certainty. 63 In fact, in
claims for compensation, the strict rules of evidence need not be observed as the
primordial and paramount consideration should be the employee's welfare. 64

As to the findings of respondents SSS and ECC that petitioner is a chronic smoker
and drinker, the Court finds that it should not bar petitioner's claim for
compensation, whether or not such findings are true. In Government Service
Insurance System v. De Castro,65 the Court said that:

We find it strange that both the ECC and the GSIS singled out the presence of
smoking and drinking as the factors that rendered De Castro's ailments, otherwise
listed as occupational, to be non-compensable. To be sure, the causes of CAD and
hypertension that the ECC listed and explained in its decision cannot be denied;

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smoking and drinking are undeniably among these causes. However, they are not
the sole causes of CAD and hypertension and, at least, not under the
circumstances of the present case. For this reason, we fear for the implication of
the ECC ruling if it will prevail and be read as definitive on the effects of smoking
and drinking on compensability issues, even on diseases that are listed as
occupational in character. The ruling raises the possible reading that smoking and
drinking, by themselves, are factors that can bar compensability.

We ask the question of whether these factors can be sole determinants of

compensability as the ECC has apparently failed to consider other factors such as
age and gender from among those that the ECC itself listed as major and minor
causes of atherosclerosis and, ultimately, of CAD. While age and gender are
characteristics inherent in the person (and thereby may be considered non-work
related factors), they also do affect a worker's job performance and may in this
sense, together with stresses of the job, significantly contribute to illnesses such as
CAD and hypertension. To cite an example, some workplace activities are
appropriate only for the young (such as the lifting of heavy objects although these
may simply be office files), and when repeatedly undertaken by older workers, may
lead to ailments and disability. Thus, age coupled with an age-affected work activity
may lead to compensability. From this perspective, none of the ECC's listed factors
should be disregarded to the exclusion of others in determining compensability.

In any determination of compensability, the nature and characteristics of the job are
as important as raw medical findings and a claimant's personal and social history.
This is a basic legal reality in workers' compensation law. We are therefore
surprised that the ECC and the GSIS simply brushed aside the disability
certification that the military issued with respect to De Castro's disability, based
mainly on their primacy as the agencies with expertise on workers' compensation
and disability issues.

While ECC and GSIS are admittedly the government entities with jurisdiction over
the administration of workers' disability compensation and can thus claim primacy
in these areas, they cannot however claim infallibility, particularly when they use
wrong or limited considerations in determining compensability. 66 (Emphasis in the
original)

All told, the Court finds that under prevailing jurisprudence, the nature of petitioner's
work and his medical results are substantial evidence to support his claim for EC
TTD benefits under PD No. 626, as amended.

WHEREFORE, the Petition is hereby GRANTED. The assailed October 31, 2012

Decision of the Court of Appeals in CA G.R. SP No. 124496 is REVERSED AND
SET ASIDE. The respondents Social Security System and Employees'
Compensation Commission are hereby ordered to pay petitioner Jesus B. Villamar

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Employees' Compensation Temporary Total Disability benefits due him under
Presidential Decree No. 626, as amended.

SO ORDERED.

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[10]

G.R. No. 210289. March 20, 2017.*

 
TSM SHIPPING PHILS., INC. and/or DAMPSKIBSSELSKABET NORDEN A/S and/or
CAPT. CASTILLO, petitioners, vs. LOUIE L. PATIÑO, respondent.
Labor Law; Seafarers; Disability Benefits; Permanent Total Disability; Conditions in
Order for a Seafarer May Have Basis to Pursue an Action for Total and Permanent
Disability Benefits.—Based on this pronouncement in Vergara v. Hammonia Maritime
Services, Inc., 567 SCRA 610 (2008), the Court then held, in the case of C.F. Sharp Crew
Management, Inc. v. Taok, 677 SCRA 296 (2012), that a seafarer may have basis to pursue
an action for total and permanent disability benefits in any of the following conditions: (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 being
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 whom 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
_______________

*  FIRST DIVISION.
 
 
71
VOL. 821, MARCH 20, 2017 71
TSM Shipping Phils., Inc. vs. Patiño
period but he remains incapacitated to perform his usual sea duties after the lapse of
the said periods.
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 Same; Same; Same; Same; The rule is that a temporary total disability only becomes
permanent when the company-designated physician, within the two hundred forty (240)-day
period, declares it to be so, or when after the lapse of the said period, he fails to make such
declaration.—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 said period, he fails to make such declaration.” After the initial
interim assessment of Dr. Cruz, respondent continued with his medical treatment. Dr. Cruz
then rendered on September 29, 2010 a final assessment of Grade 10 upon reaching the
maximum medical cure. Counting from the date of repatriation on May 24, 2010 up to
September 29, 2010, this assessment was made within the 240-day period. Clearly, before
the maximum 240-day medical treatment period expired, respondent was issued a Grade 10
disability rating which is merely equivalent to a permanent partial disability under the
POEA-SEC. Thus, respondent could not have been suffering from a permanent total
disability as would entitle him to the maximum benefit of US$60,000.00.
Same; Same; Same; The Philippine Overseas Employment Administration-Standard
Employment Contract (POEA-SEC) clearly provides that when a seafarer sustains a work-
related illness or injury while onboard the vessel, his fitness or unfitness for work shall be
determined by the company-designated physician.—The Court finds the labor tribunals’
rulings seriously flawed as they were rendered in total disgregard of the provisions of the
POEA-SEC, which is the law between the parties. The medical opinion of Dr. Escutin ought
not to be given more weight than the disability grading given by Dr. Cruz. The POEA-SEC
clearly provides that when a seafarer sustains a work-related illness or injury while onboard
the vessel, his fitness or unfitness for work shall be determined by the company-designated
physician. However, if the doctor appointed by the seafarer makes a finding contrary to that
of the assessment of the company-designated physician, a third doctor may be agreed jointly
between the employer and the seafarer and the latter’s decision shall be final and binding on
both of them. The Court has held that nonobservance of the requirement to have the
conflicting assessments
 
 
72
72 SUPREME COURT REPORTS ANNOTATED
TSM Shipping Phils., Inc. vs. Patiño
determined by a third doctor would mean that the assessment of the company-
designated physician prevails.
Same; Same; Same; Permanent Total Disability; Section 32 laid down a Schedule of
Disability or Impediment for Injuries Suffered and Diseases including Occupational
Diseases or Illness Contracted, in conjunction with Section 20(B)(6) which provides that in
case of a permanent total or partial disability, the seafarer shall be compensated in
accordance with Section 32. Section 32 further declares that any item in the schedule
classified under Grade 1 shall be considered or shall constitute total and permanent
disability.—Section 32 of the POEA-SEC provides for a schedule of disability
compensation which is often ignored or overlooked in maritime compensation cases.

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Section 32 laid down a Schedule of Disability or Impediment for Injuries Suffered and
Diseases including Occupational Diseases or Illness Contracted, in conjunction with Section
20(B)(6) which provides that in case of a permanent total or partial disability, the seafarer
shall be compensated in accordance with Section 32. Section 32 further declares that any
item in the schedule classified under Grade 1 shall be considered or shall constitute total
and permanent disability. Therefore, any other grading constitutes otherwise. We stressed
in Splash Philippines, Inc. v. Ruizo, 719 SCRA 496 (2014), that it is about time that the
schedule of disability compensation under Section 32 be seriously observed.
PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
   Del Rosario & Del Rosario Law Offices for petitioners.
   Panambo Law Office for respondent.
DEL CASTILLO, J.:

This Petition for Review on Certiorari1 assails the July 25, 2013 Decision 2 and
November 28, 2013 Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No.
128415 affirming the October 17, 2012 Decision 4 and April 25, 2013 Resolution 5 of
the National Labor Relations Commission (NLRC), which ordered TSM Shipping
Phils., Inc. (TSM), Dampskibsselskabet Norden A/S (DNAS), and Capt. Castillo
(collectively petitioners) to pay Louie L. Patino (respondent) US$60,000.00 as
peemanent total disability benefits and 10% thereof as atton1ey's fees.

Antecedent Facts

On January 13, 2010, TSM, for and in behalf of its foreign principal, DNAS, entered
into a Contract of Employment 6 with respondent for a period of six months as
GP2/OS (General Purpose 2/Ordinary Seaman) for the vessel Nord Nightingale.

On May 20, 2010, while working on board the vessel, respondent injured his right
hand while securing a mooring rope. He was brought to a medical facility in
Istanbul, Turkey, where X-ray showed a fracture on his 5th metacarpal bone.
Respondent's right hand was placed in a cast and thereafter he was repatriated.

Upon arrival in Manila on May 24, 2010, petitioners referred respondent to the
company-designated physician, Dr. Nicomedes G. Cruz (Dr. Cruz), for further
treatment. Respondent was also referred to an orthopedic surgeon who
recommended surgical operation to correct the malunited fractured metacarpal
bone. On June 8, 2010, respondent underwent Open Reduction and Internal
Fixation of the fractured 5th metacarpal bone at Manila Doctors Hospital. 7 He then
went through physical therapy.

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After extensive medical treatments, therapy, and follow-up examinations, Dr. Cruz,
on August 17, 2010, rendered an interim assessment of respondent's disability
under the Philippine Overseas Employment Administration - Standard Employment
Contract (POEA-SEC),8 at Grade 10, or Joss of grasping power for small objects
between the fold of the finger of one hand. Despite continuing physical therapy
sessions with the company-designated physician, respondent filed on September 8,
20l0 a complaint9 with the NLRC against petitioners for total and permanent
disability benefits damages, and attorney's fees. Thereafter, in a Medical Report
dated October 11, 2010,10 Dr. Cruz declared respondent to have reached the
maximum medical cure after rendering a final disability rating of Grade 10 on
September 29, 2010.11

On November 19, 2010, respondent consulted Dr. Nicanor Escutin (Dr. Escutin),
who assessed him to have permanent disability unfit for sea duty in whatever
capacity as a seaman.12 The following were Dr. Escutin's findings:

DISABILITY RATING:

Based on the physical examination and supported by laboratory examinations, he

injured his right hand while working. His right hand was injured by the mooring rope
which he was seeming. He sustained a fracture on his 5 th metacarpal bone. He had
medical attention after 2 days. His right hand was placed on a cast eJ1d he was
repatriated. In Manila, he had another x-ray which showed his 5 th metacarpal is not
aligned properly, so he had operation on his right hand to fix the 5th metacarpal. He
later on had physical therapy up to the time of examination. He has difficulty in
flexing his fingers adequately. His thumb cannot touch his small finger. His grip is
weak and cannot hold objects for a long time. His job as a seaman entails constant
usage of both his hands. At present he cannot fully flex his fingers which mean [sic]
he cannot hold small objects or turn knobs. He cannot fully perform his job as a
seaman. He is not physically fit to perform the job of a seaman. 13

Proceedings before the Labor Arbiter

In his position paper, respondent asked for permanent total disability benefits in the
sum of US$80,000.00 under the Associated Marine Officers and Seamen's Union
of the Philippines Collective Bargaining Agreement (AMOSUP CBA) since,
according to him, he never recovered completely nor returned to his usual duties
and responsibilities, as attested by the medical findings of Dr. Escutin, his own
physician.

Petitioners, however, claimed that respondent is only entitled to US$10,075.00

corresponding to Grade 10 disability under the POEA-SEC, as assessed, on the
other hand, by Dr. Cruz who made an extensive evaluation of respondent's injury.
They maintained that this assessment deserves greater weight than the belated

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medical report rendered by Dr. Escutin after a single examination on respondent.
Petitioners also stressed that respondent cannot claim benefits under the CBA
since he has not proven that he is a member of AMOSUP.

In a Decision14 dated April 18, 2012, the Labor Arbiter awarded respondent total
and permanent disability benefits under the AMOSUP CBA in the amount of
US$80,000.00, sickness allowance of US$1, 732.00, attorney's fees equivalent to
10% of the award or US$8, 173 .20, and moral and exemplary damages of
₱l00,000.00 and ₱50,000.00, respectively, for the fraud and malice that attended
the denial of his claims.

The Labor Arbiter observed that respondent is indeed suffering from a total and
permanent disability since his rehabilitation took five months or more than 120 days
and there was no offer on the part of petitioners to rehire him. The Labor Arbiter
found credible Dr. Escutin's finding that respondent's injury had rendered him inutile
as an ordinary seaman and although total disability does not mean absolute
helplessness, his incapacity to work resulted in the impairment of his earning
capacity. The dispositive portion of the Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered ordering the

respondents TSM Shipping (Phils.), Inc./Dampskibsselskabet Norden A.S./Capt.
Castillo to jointly and severally pay complainant Louie Patino the amount of
EIGHTY NINE THOUSAND EIGHT HUNDRED FIVE US DOLLARS & 201100
(US$89,805.20) or its equivalent in Philippine Peso at the prevailing rate of
exchange at the time of actual payment representing his total permanent disability
benefits, sickness allowance and attorney's fees.

Respondents are further ordered to pay complainant the amount of ONE

HUNDRED FIFTY THOUSAND PESOS (₱l50,000.00) representing moral and
exemplary damages.

All other claims are DISMISSED for lack of merit.

SO ORDERED.15

Proceedings before the National Labor Relations Commission

On appeal, petitioners attributed serious error to the Labor Arbiter for awarding full
disability benefits under the CBA. They argued that an illness which lasted for more
than 120 days does not necessarily mean that a seafarer is entitled to full disability
benefits, and that the company-designated physician's partial disability grading is
still binding and controlling. Further, there was no concrete medical evidence that
respondent suffers from a Grade 1 disability and that no THIRD Doctor was
appointed to resolve any doubts as to the true state of health of respondent.

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Petitioners also disputed respondent's entitlement to damages and attorney's fees
by denying that they acted with malice and fraud.

In a Decision16 dated October 17, 2012, the NI.RC agreed with the Labor Arbiter
that respondent is entitled to permanent total disability benefits because his injury
had rendered him incapable of using his right hand, based on the last medical
report of Dr. Cruz, where the latter acknowledged that respondent's right grip is
poor. The NLRC ruled that disability should not be understood based on its medical
significance but on the loss of earning capacity. It, however, held that respondent
cannot claim benefits under the CBA there being no evidence that he was a
member of AM:OSUP; likewise, it found no basis in awarding attorney's fees and
damages after finding that petitioners did not act in bad faith. It, thus, awarded
respondent total and permanent disability benefits in the amount of US$60,000.00
under the POEA-SEC and deleted the award of damages and attorney's fees, thus:

WHEREFORE, the appeal is partly GRANTED. The Decision of the Labor Arbiter
dated April 18. 2012 is AFFIRMED with MODIFICATION; finding appellee entitled
to permanent disability benefits under t.1-ie POEA-SEC. Accordingly appellants are
ordered to jointly and severally pay appellee the amount of Si.xty Thousand US
Dollars (US$60,000.00) or its peso equivalent at the time of payment. The award of
attorney's foes is deleted.

The award for moral and exemplary damages are deleted. so ORDERED. 17

Both parties filed their respective motions for reconsideration. 18 Petitioners, for their
part, questioned the NLRC’s award despite lack of proof that respondent suffers
from a Grade 1 disability. Respondent, on the other hand, maintained that he is
covered by the AMOSUP CEA and that petitioners are also liable for damages and
attorney's fees in view of their bad faith.

In a Resolution19 dated November 23, 2012, the NLRC denied petitioners' motion

for reconsideration. In a subsequent Resolution 20 dated April 25, 2013, the NRC
partly granted respondent's motion for reconsideration by reinstating the Labor
Arbiter's award of attorney's fees on the ground that he was forced to litigate his
claims, The NLRC made the following disposition in its April 25, 2013 Resolution:

WHEREFORE, apppelle's motion for reconsideration is PARTLY GRANTED. Our

Decision dated October 17, 2012 is Modified in that, respondent-appellants are
ordered to pay appellee ten percent (10%) of the award as attorney's fees.

SO ORDERED,21

Proceedings before the Court of Appeals

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Petitioners filed a Petition for Certiorari with Prayer for the Issuance of a Writ of
Preliminary Injunction and/or Te1nporary Restraining Order 22 docketed as CA-G.R.
SP No. 128415 to enjoin the enforcement/execution of the NLRC judgment.
Petitioners attributed grave abuse of discretion on the NLRC in awarding
respondent US$60,000.00 without providing any substantial evidence to prove that
he was suffering from Grade 1 disability and for unreasonably awarding attorney's
fees despite absence of bad faith on their part. 23

The CA, on July 25, 2013, rendered a Decision 24 dismissing the Petition
for Certiorari and affirming the October 17, 2012 Decision and April 25, 2013
Resolution of the NLRC. The CA agreed with the findings of both the NLRC and
Labor Arbiter that respondent is entitled to a Grade 1 or total permanent disability
benefits under the POEA-SEC and that the assessment of respondent’s chosen
physician, Dr. Escutin, is credible. The CA ratiocinated that both labor tribunals did
not merely base their findings on the mere lapse of the 120-day threshold period
but on respondent’s inability to perform the duties for which he was trained to do,
resulting in the impairment of his earning capability. Besides, it held that factual
findings of these administrative agencies should be accorded great respect, if not
finality, if supported by substantial evidence.

Petitioners sought reconsideration 25 of this Decision but was denied by the CA in its
Resolution26 of November 28, 2013.

Issues

Hence, the present Petition raising the following issues:

l. Whether the Court of Appeals decided in a way not in accord with law or with the
applicable decisions of the Supreme Court in affirming the questioned Decision and
Resolution of the Court of Appeals [sic] which held herein petitioners liable for a
total of US$60,000.00 as disability benefits despite the glaring fact that the private
respondent was declared as merely suffering from a Grade 10 disability as
recommended by the company-designated physician;

2. Whether the sole claim of 'loss of earning capacity' and the '120-day rule' should
equate to an award of US$60,000.00 despite the lack of substantial evidence to
support the allegation that he is actually suffering from a Grade 1 disability and
despite the undisputed evidence that he was actually suffering from a Grade 10
disability;

3. Whether the medical findings of the company-designated physician should be

upheld over that issued by the physician appointed by the private respondent;

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4. Whether the Court of Appeals decided in a way not in accord with law or with the
applicable decisions of the Supreme Court in affirming the award for 10% attorney's
fees despite the fact that the private respondents [sic] failed to prove that herein
petitioners acted in bad faith.27

Petitioners assert that the mere lapse of the 120-day period does not automatically
vest an award of full disability benefits and that the assessment of the company-
designated physician is controlling in measuring the degree of the seafarer's
disability. At any rate, the 120-day period may be extended to 240 days if the
seafarer requires further medical attention, as in this case. Therefore, the partial
disability grading rendered by Dr. Cruz within the 240-day medical treatment
prevails over the single and belated opinion of Dr. Escutin. Besides, no referral was
made to a THIRD Doctor who should have rendered a binding third opinion. There
was, thus no basis for respondent to claim total and pem1anent disability benefits.

Petitioners also insist that the award of attorney's fees had likewise no basis in the
absence of any evidence that they acted in bad faith, which brought about this
present litigation.

Our Ruling

We find merit in the Petition.

Respondent's complaint for disability benefits was premature.

Because of lack of proof that respondent is covered by the AMOS UP CBA, settled
is the finding that his entitlement to disability benefits is governed by the POEA-
SEC and relevant labor laws, which are deemed written in the contract of
employment with petitioners.

Article 192(c)(1) of the Labor Code provides that:

Art. 192. Permanent total disability. -x x x

(c) The following disabilities shall be deemed total and permanent:

(1) Temporary total disability lasting continuously for more than one hundred twenty
days, except as otherwise provided for in the Rules;

The Rule referred to in this Labor Code provision is Section 2, Rule X of the
Amended Rules on Employees' Compensation Implementing Title II, Book IV of the
Labor Code, which states:

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Sec. 2. Period of Entitlement - (a) The income benefit shall be paid beginning on
the FIRST Day of such disability. If caused by an injury or sickness it shall not be
paid longer than 120 consecutive days except where such injury or sickness still
requires medical attendance beyond 120 days but not to exceed 240 days from
onset of disability in which case benefit for temporary total disability shall be paid.
However, the System may declare the total and permanent status at any time after
120 days of continuous temporary total disability as may be warranted by the
degree of actual loss or impairment of physical or mental functions as determined
by the System.

Section 20 B(3) of the POEA-SEC also provides that:

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 san1e 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.

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.

In Vergara v. Hammonia Maritime Services, Jnc., 28 the Court ruled that the
aforequoted provisions should be read in harn1ony with each other. The Court
held:

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 of240 days, subject to the right of the employer to declare within
this period that a permanent partial or total disability already exists. The seaman

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may of course also be declared fit to work at any time such declaration is justified
by his medical condition.29

Thus, based on this pronouncement in Vergara, the Court then held, in the case
of C.F. Sharp Crew Management, Inc. v. Taok, 30 that a seafarer may have basis to
pursue an action for total and permanent disability benefits in any of the following
conditions:

(a) the company-designated physician tailed 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 being 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 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 whom 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-SBC found
otherwise and declared him unfit to work;

(g) the company-designated physician declared him totally and pem1ancntly

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 the said periods. 31

Upon respondent's repatriation on May 24, 2010, he was given extensive medical
attention by the company-designated physician. On August 17, 2010, an interim
assessment of Grade 10 was given by Dr. Cruz as respondent was still undergoing
further treatment and physical therapy. However, on September 8, 2010, or 107
days since repatriation, respondent filed a complaint for total and permanent

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disability benefits. During this time, he was considered under temporary total
disability inasmuch as the 120/240-day period had not yet lapsed. Evidently, the
complaint was prematurely filed.

Moreover, it is significant to note that when he filed his complaint, respondent was
armed only with the interim medical assessment of the company-designated
physician and his belief that his injury had already rendered him permanently
disabled. It was only after the filing of such complaint or on November 9, 2010 that
he sought the opinion of Dr. Escutin, his own physician. As such, the Labor Arbiter
should have dismissed at the first instance the complaint for lack of cause of action.

Respondent is not entitled to total and permanent disability compensation.

We find serious error in the rulings of the Labor Arbiter, NLRC, and CA that
respondent's disability is considered permanent and total based on the 120-day
rule and on his inability to work resulting in the loss of earning capacity.

"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 said period, he fails to make such
declaration."32 After the initial interim assessment of Dr. Cruz, respondent continued
with his medical treatment. Dr. Cruz then rendered on September 29, 2010 a final
assessment of Grade 10 upon reaching the maximum medical cure. Counting from
the date of repatriation on May 24, 2010 up to September 29, 2010, this
assessment was made within the 240-day period. Clearly, before the maximum
240-day medical treatment period expired, respondent was issued a Grade 10
disability rating which is merely equivalent to a permanent partial disability under
the POEA-SEC. Thus, respondent could not have been suffering from a permanent
total disability as would entitle him to the maximum benefit of US$60,000.00.

The Court finds the labor tribunals' rulings seriously flawed as they were rendered
in total disgregard of the provisions of the PO EA-SEC, which is the law between
the parties. The medical opinion of Dr. Escutin ought not to be given more weight
than the disability grading given by Dr. Cruz. The POEA-SEC clearly provides that
when a seafarer sustains a work-related illness or injury while on board the vessel,
his fitness or unfitness for work shall be determined by the company-designated
physician. However, if the doctor appointed by the seafarer makes a finding
contrary to that of the assessment of the company-designated physician, a THIRD
Doctor may be agreed jointly between the employer and the seafarer and the
latter's decision shall be final and binding on both ofthem.33 The Court has held
that non-observance of the requirement to have the conflicting assessments
determined by a THIRD Doctor would mean that the assessment of the company-
designated physician prevails. As decreed by this Court in Veritas Maritime
Corporation v. Gepanaga, Jr.:34

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x x x Gepanaga failed to observe the prescribed procedure of having the conflicting
assessments on his disability referred to a THIRD Doctor for a binding opinion.
Consequently, the Court applies the following pronouncements laid down
in Vergara:

The POEA Standard Employment Contract and the CBA clearly provide that when
a seafarer sustains a work-related illness or injury while on board the vessel, his
fitness or unfitness for work shall be determined by the company-designated
physician. If the physician appointed by the seafarer disagrees with the company-
designated physician's assessment, the opinion of a THIRD Doctor may be agreed
jointly between the employer and the seafarer to be the decision final and binding
on them.

Thus, while petitioner had the right to seek a second and even a third opinion, the
final determination of whose decision must prevail must be done in accordance with
an agreed procedure. Unfortunately, the petitioner did not avail of this procedure;
hence, we have no option but to declare that the company-designated doctor's
certification is the final determination that must prevail. x x x.

Indeed, for failure of Gepanaga to observe the procedures laid down in the POEA-
SEC and the CBA, the Cort is left without a choice but to uphold the certification
issued by the company-designated physician that the respondent was fit to go back
to work.35

In the absence of a third and binding opinion, the Court has no option but to hold
Dr. Cruz's assessment of respondent's disability final and binding.1âwphi1 At any
rate, more weight should be given to this assessment as Dr. Cruz was able to
closely monitor respondent's condition from the time he was repatriated in May
2010 until his last follow-up examination in October 2010. The extensive medical
attention given by Dr. Cruz enabled him to acquire a detailed knowledge of
respondent's medical condition. Under the supervision of Dr. Cruz, respondent
underwent surgery and physical therapy. On the basis of the medical records and
the results obtained from the medical treatments Dr. Cruz arrived at a definite
assessment of respondent's condition. Having extensively monitored and treated
respondent's injury, the company-designated physician’s diagnosis deserves more
weight than respondent's own doctor.

Moreover, we further find without basis the pronouncement of the Labor Arbiter that
petitioners' failure to rehire respondent is conclusive proof of his disability. There
was no showing that respondent sought re-employment with petitioners or that it
was a matter of course for petitioners to re-hire him. There was also no evidence or
allegation that respondent sought employment elsewhere but was denied because
of his condition.

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In sum respondent is not entitled to total and permanent disability compensation.
The filing of his complaint is premature and in breach of his contractual obligation
with the petitioners. Dr. Cruz's Grade 10 disability rating prevails for failure to
properly dispute it in accordance with an agreed procedure. Respondent is thus
entitled to the amount corresponding to Grade 10 based on the certification issued
by Dr. Cruz.

Section 32 of the POEA-SEC provides for a schedule of disability compensation

which is often ignored or overlooked in maritime compensation
cases.1âwphi1 Section 32 laid down a Schedule of Disability or Impediment for
Injuries

Suffered and Diseases including Occupational Diseases or illness Contracted, in

conjunction with Section 20 (B)(6) which provides that in case of a permanent total
or partial disability, the seafarer shall be compensated in accordance with Section
32. Section 32 further declares that any item in the schedule classified under Grade
1 shall be considered or shall constitute total and permanent disability. Therefore,
any other grading constitutes otherwise. We stressed in Splash Philippines, Inc. v.
Ruizo36 that it is about time that the schedule of disability compensation under
Section 32 be seriously observed.

WHEREFORE, the Petition is GRANTED. The July 25, 2013 Decision and
November 28, 2013 Resolution of the Court of Appeals in CA-G.R. SP No. 128415
are SET ASIDE. Petitioners TSM Shipping Phils., Inc.,

Dampskibsselskabet Norden A/S, and Capt. Castillo are ordered to jointly and

solidarily pay respondent Louie L. Patiño US$10,075.00 (US$50,000.00 x 20.15%)
or its equivalent amount in Philippine currency at the time of payment.

SO ORDERED.

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