This is a Petition for Review on Certiorari^[1] (Petition)  under Rule 45 of the Rules  of Court  assailing  the Decision ^[2] dated  October  13, 2016 and Resolution^[3]    dated March 31, 2017 of the Court of Appeals (CA) in CA-G.R. SP No. 144772, which denied petitioners ™ petition for certiorari under Rule 65 of the Rules of Court.

On November  5, 2013,  petitioner Magsaysay  Maritime  Corporation (Magsaysay), a local manning agency, in behalf of its principal, petitioner Princess  Cruise  Lines  Ltd.,  entered into a contract of  employment with respondent  Allan F. Buico (Buico) as Second Pantryman aboard  the vessel Star Princess (Hotel).^[4]   Buico's  basic wage was US$477.00 per month with guaranteed overtime pay of US$498.00 per month, among other benefits.^[5]

While on board, Buico met an accident which caused him an injury on his right leg and ankle.^[6]   First aid treatment was initially given to Buico and he was thereafter transferred to a hospital in Canada where he underwent an Open Reduction Internal Fixation (ORIF) surgery procedure.^[7] Thereafter, he was repatriated to the Philippines on July 9, 2014 for further treatment.^[8]

After  examination,  the  company-designated  physician  initially diagnosed Buico to have "3/p ORIF (July 4, 2014-Canada) for Fracture, lateral and posterior  malleolus  with talar shift, right", and recommended an orthopedic follow-up checkup and continued wound care.^[9] The company designated' physician  again examined Buico on August  14, 2014 and, in a medical report, he recommended 12 sessions of physical therapy^[10]   All in all, Buico underwent therapy for a total of 36 sessions starting August 19, 2014 until November 28,2014, as shown by his certificate of attendance.^[11]

On   October   11,  2014   and  November   15,  2014,  the   company designated physician issued an Interim Disability Grading, assessing Buico's disability at Grade 10 pursuant to the Philippine Overseas Employment Administration-Standard Employment Contract (POEA-SEC).^[12] Subsequently,  on  December  1,  2014,  the  company-designated   physician gave  a Final  Medical  Report ^[13]   and  a Disability  Grading^[14]     of  Grade  10 disability in accordance with the POEA-SEC.

Unhappy  with  this  assessment,  Buico  consulted  his own  physician who diagnosed Buico unfit to perform sea duty in whatever capacity with a permanent disability status.^[15]

On March  13, 2015, Buico then filed a Complaint ^[16] with the Labor Arbiter (LA) against petitioners for permanent and total disability benefits.

In their defense, petitioners essentially made the following arguments: Buico was not entitled to permanent and total disability benefits because the company-designated  physician  had already assessed his disability at Grade 10 pursuant to the POEA-SEC; Buico failed to follow the third doctor rule; the company-designated  physician had knowledge of Buico's actual medical condition, hence, he was more qualified to assess his disability and his assessment should be upheld.^[17]

The Ruling of the LA

In a Decision ^[18]   dated June 30,-2015, the LA found that Buico suffered from Grade 10 disability, and ruled that  Buico's  physician's assessment was not done as thoroughly as that of the company-designated  physician who had continuously  attended  to him for a period of more than four (4) months.^[19] The dispositive portion of the LA Decision reads:

WHEREFORE,  premises considered,  judgment  is hereby rendered as follows:

1)  Declaring [Buico] as suffering from Grade 10 disability[; and]

2)   Ordering  [petitioners  Magsaysay],  Princess  Cruise  Lines  Ltd. and  Gary  M.    Castillo  to  jointly  and  severally  pay  [Buico] disability   benefit   in  the   amount   of   US$10,075   or  in  its Philippine Peso equivalent  at the time of payment.

All other claims are dismissed   or lack of merit.

So Ordered.^[20]

Aggrieved,     Buico     appealed with   the   National     Labor     Relations Commission (NLRC).

The Ruling of the NLRC

In a Resolution^[21]   dated November 27, 2015, the NLRC reversed the LA's  findings,  ruling that the referral to a third doctor was not mandatory and that the findings of the company-designated physician and the seafarer's doctor   were   inconclusive   because   they   still   had   to  be  weighed   and considered   by  the  labor  tribunals.^[22]    Further,   the  NLRC  ruled  that  the company-designated  physician's assessment was not accurate and precise, pointing  out  that  the  company-designated  physician  even  admitted  in the Final Medical Report that Buico was not restored to his previous condition, hence, his disability should therefore be considered as total and permanent^[23] The dispositive portion of the Resolution reads:

WHEREFORE, premises considered, the appeal of [Buico] is GRANTED. The Decision dated June 30, 2015 is hereby MODIFIED in that  [petitioners]  are  hereby  ORDERED to  solidarily  pay  [Buico]  the amount  of US$60,000  as permanent and total disability compensation  plus 10% thereof as attorney's fees.

SO ORDERED^[24]

In   a   Resolution^[25]      dated   January   21,   2016,   the   NLRC   denied petitioners'  motion for reconsideration.  Subsequently, the petitioners filed a Rule 65 petition with the CA.

The Ruling of the CA

In a Decision^[26]   dated October  13, 2016, the CA denied the petition and affirmed the NLRC rulings finding Buico entitled to permanent and total disability benefits. The CA held that the Disability Grading given by the company-designated  physician  was not accurate  and precise  as to Buico's actual   medical   condition.^[27]     Because   the  company-designated   physician failed to arrive at a definite assessment of Buico's fitness or disability within the statutory periods, the CA ruled that Buico should be deemed totally and permanently disabled and entitled to the corresponding disability benefit.^[28]

Petitioners filed a Motion for Reconsideration,^[29] but this was denied by the CA in a Resolution^[30] dated March 31, 2017. Aggrieved, petitioners filed the instant Petition under Rule 45 of the Rules of Court before the Court.

On July 31, 2017, the Court issued a Resolution^[31] requiring Buico to file  a Comment  on  the  instant  Petition.  Subsequently,  in a July  9, 2018 Resolution,^[32]   the Court noted that Buico's  counsel, Atty. Vicenzo Nonato M. Taggueg  (Atty.  Taggueg),  failed  to  file  a  Comment  on  the  Petition  and resolved to require Atty. Taggueg to show cause why he should not be disciplinarily  dealt with or held in contempt for such failure and to comply with the July 31, 2017 Resolution. On March 4, 2019, the Court again issued a Resolution^[33]   which required the filing of a comment and imposed a fine of P1,000.00 'upon Atty. Taggueg for his failure to comply with the show cause resolution. Since the Court has not received Buico's Comment  despite the issued Resolutions  requiring the filing of the same, the Court shall dispense with the filing of the Comment  and now resolve the controversy based on the Petition and the existing records.


The main issue in the case at bar is whether Buico is entitled to the award of total and permanent disability benefits.


The instant Petition is meritorious.

At the  outset,  it is important  to note that a Rule  45 review  by this Court in labor cases generally does not delve into factual questions or to an evaluation   of   the   evidence   submitted  by   the   parties.^[34] However,   one exception to this rule is when the judgment is based on a misapprehension  of facts.^[35]   Such exception applies in the instant case because, contrary to the findings of the NLRC and the CA, the company-designated physician  had issued a final, accurate, and precise disability grading within the prescribed statutory  periods.  Hence,  Buico  is no   entitled  to  the  award  of  total  and permanent disability benefits.

It is  settled  that  the  seafarer's entitlement  to  disability  benefits  is governed by law, the parties' contracts, and by medical findings. Since Buico was employed in 2013, the procedure to be observed in claiming disability benefits is outlined in Section 20(A) of the 2010 POEA-SEC, as follows:

SECTION 20. COMPENSATION AND BENEFITS

A.    COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS

The  liabilities  of  the  employer  when   the  seafarer  suffers  work-related injury or illness during the term of his   contract are as follows:

x x x x

2.   x x x However,  if after repatriation,  the seafarer  still requires medical attention arising from said injury or illness, be shall  he so  provided at  cost  to  the employer until  such  time  he  is declared  fit or the degree   of   his   disability  has   been established by the company-designated physician.

3.  In addition to the above obligation of the employer to provide medical   attention,  the seafarer   shall   also   receive   sickness allowance from his employer in an amount equivalent to his basic wage computed from  the time he signed off until he is declared fit to work or the degree of disability  has been assessed by the company-designated physician. The period within which the seafarer shall  be entitled to his sickness allowance  shall  not exceed  120  days.  Payment of the sickness allowance shall be made on a regular basis, but   not less than once a month.

xxxx

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. (Emphasis supplied)

Pursuant  to  the  above  provisions,  when  a  seafarer  suffers  a  work-related injury, the employer is obligated to refer the seafarer to a company-designated physician who has to arrive  at a definite  assessment of the seafarer's fitness or degree of disability within a period of 120 days from repatriation.^[36]   However, if  there  is  no  definitive  declaration  because  the  seafarer  required  further medical attention, then the 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.^[37] The case of Jebsens Maritime,  Inc.   v.  Mirasol ^[38]    succinctly  summarized   the  rules  governing seafarers' claims for total and permanent disability benefits as follows:

1. The  company-designated physician  must  issue  a final medical assessment  on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;

2.   If  the  company-designated  physician  fails  to  give  his  assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent  and total;

3.  If the company-designated physician  fails to give his assessment within   the   period   of  120  days  with   a  sufficient   justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended  to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and

4.   If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes   permanent    and total;   regardless   of   any   justification.^[39] (Emphasis and underscoring supplied)

In the case at bar, while the company-designated  physician had issued both the Final Medical Report and Disability Grading on December 1, 2014 - beyond  the  initial  120-day  period  from  repatriation  which  ended  on November  6, 2014 - there was sufficient  justification  for such failure to give a timely medical assessment and to extend the period of diagnosis and treatment  because  Buico had required further medical treatment. As found by the CA, Buico had religiously undergone therapy from August 19, 2014 until  November   28,  2014.^[40]     The  Final  Medical   Report  and  Disability Grading was thus timely issued by the company-designated  physician within the extended 240-day period which ended on March 6, 2015.

Despite  this,  however,  both  the  NLRC  and  the  CA  ruled  that  the disability assessment and medical report made by the company-designated physician  were  not  accurate  and  precise  as to Buico's  medical  condition based on their  wording. A closer look at these documents, however, gives a contrary conclusion.

The   Final   Medical   Report^[41] issued   by   the   company-designated physician contained the following discussion as to Buico's  condition:

On  December  1,  2014,  [Buico]  was  reevaluated  by  Orthopedic Surgery service.  At this time, he has completed  a total  of 36 sessions of physical therapy. Subjectively,  the patent reported intermittent  right foot pain   of   VAS   4/10  felt   on   prolonged  walking   and   stair   climbing. Objectively,  [the]  latest  x-ray  dated November  4,  2014  showed healed fracture  with  implants  in  place.  Patient was able to tolerate full weight bearing, however  there was note of a  limping gait. Residual  limitation  in range  of  motion  on  the  right  ankle  was  noted.  No  other  treatment intervention was indicated for  the patient  aside  [from]  continued self guided  home  exercises  and  as needed intake of pain  medication. Mr. Buico was deemed  maximally medically improved for  the  Orthopedic condition referred.^[42] (Emphasis supplied)

The Disability Grading^[43] also issued by the company-designated physician on the same date contained the following statement:

Should it be needed, [the] disability grading that closely corresponds to the patient's  present functional capacity, in accordance [with] the 2010 POEA Standard Employment Contract, Section 32 (Schedule of Disability or Impediment for Injuries Suffered and Diseases Including Occupational Disease or  Illness Contracted),  Lower Extremities, Malleolar  fracture with  displacement  of  the  foot inward  or  outward,  is  a Grade  10 disability.^[44] (Emphasis supplied; italic  in the original)

After  perusing  the  above  excerpts,  the  Court  disagrees  with  the findings of the CA and NLRC. The above documents show that the findings of the company-designated physician as to Buico's  disability were final, accurate, and precise, especially since there was a specific disability grading and since it stated that there was no other treatment  intervention  indicated for Buico. It is likewise noteworthy that the disability grading given by the company-designated  physician  was a result of several months of diagnosis and treatment.  In fact, this Grade 10 disability  rating  was already given to Buico at least twice as an interim disability grading, thereby further lending credence to the assessment given by the company-designated physician.

In the  face  of  such  final  disability grading  given  by the company designated physician  within the prescribed period, the seafarer who intends to contest such assessment has the duty to observe the third doctor provision under the 2010 POEA-SEC.^[45]

As    stated    in   jurisprudence,     in    case    of    non-observance    by the seafarer of the third   doctor   referral   provision   in  the  contract,   the employer can insist on the company-designated  physician's assessment even against the contrary opinion by another doctor, unless the seafarer expresses his disagree1nent by asking for a referral to a third doctor who shall make a determination  and whose decision shall be final and binding on the parties.^[46] Securing  a  third  doctor's   opinion  is  the  duty  of  the  seafarer,  who  must actively or expressly request for it.^[47]

Contrary to the pronouncement  made by the NLRC, the referral to a third doctor  is mandatory.^[48]   Without  referral to a third doctor, there is no valid challenge to the company-designated  physician's findings. Ultimately, therefore,  the company-designated  physician's  findings in such a situation must be upheld over the findings of the personal doctor of the seafarer.^[49]

In  the  instant  case,  after  the  company-designated  physician  gave  a final Grade 10 disability assessment, Buico consulted his own physician who opined that he was unfit to perform sea duty in whatever capacity with a permanent disability status. Thereafter, Buico filed a complaint against his employers without first expressly requesting the company for the referral of the matter to a third doctor.

This failure by Buico to comply with the requirement of referral to a third doctor is tantamount to a violation of terms under the POEA-SEC. Consequently, without a binding third-party opinion, the final, accurate and precise findings of the company-designated physician prevail over the conclusion of the seafarer's personal doctor.

In light of the foregoing, the Court finds that the LA had correctly awarded  Grade  10  disability  benefits  to  Buico  based  on  the  disability grading given by the company-designated  physician. Further, in accordance with prevailing jurisprudence, the total monetary award in his favor shall be subject to an interest  of 6% per annum from the finality  of this Decision until full payment.

WHEREFORE, premises  considered,  the  Petition  is  GRANTED. The Decision dated October 13, 2016 and Resolution dated March 31, 2017 of the Court of Appeals in CA-G.R. SP No. 144772 are SET  ASIDE.  The Labor Arbiter's Decision dated June 30, 2015 is REINSTATED. The total monetary award shall be subject to the interest rate of 6% per am1um from the finality of this Decision until full payment.

SO ORDERED.


Peralta, C.J., (Chairperson), Caguioa, J. Reyes, Jr., Lazaro-Javier, Inting, JJ.,* concur

---

* Stated as "Cruises" in some parts of the rolla and CA rollo.

*Designated additional Member per Special Order No. 2726 dated October 25, .2019.

^[1] Rollo, pp. 3-40.

^[2] Id. at 41-50. Penned by Associate Justice Ma. Luisa C. Quijano-Padilla and concurred in by Associate Justices Normandie B. Pizarro and Ramon Paul L. Hernando     (now a Member of the Court).

^[3] Id. at 52-53.

^[4] Id. at41-42.

^[5] Id. at 42.

^[6]   Id.

^[7] Id.

^[8] Id.

^[9] Id.

^[10] Id.

^[11] Id.

^[12] Id.

^[13] CA rollo, pp. 126-127.

^[14] Id. at 128.

^[15]   Rollo, p. 4>3.

^[16]   CA rollo,pp.l31-132.

^[17] Rollo, p. 43.

^[18] CA rollo, pp. 68-75. Penned by Labor Arbiter Remedios L.P. Marcos.

^[19] Id. at 71-72.

^[20] Id. at 75.

^[21] Id. at 57-66. Penned  by Commissioner  Alan A. Ventura and concurred  in by Presiding Commissioner Gregorio 0. Bilog, III and Commissioner  Erlinda T. Agus.

^[22] Rollo, p. 44; CA rollo, pp. 63-64.

^[23] Id.; Id. at 60-62.

^[24] CA rollo, p. 65.

^[25]   Id. at 77-79.

^[26] Rollo,  pp. 41-50.

^[27] Id. at 48.

^[28] Id.

^[29] Id. at 55-75.

^[30] Id. at 52-53.

^[31] Id. at 76.

^[32] Id. at 79-80.

^[33]   Id. at 84-85.

^[34] Magsaysay Mol Marine,  Inc. v. Atraj , G.R. No. 229192, July 23, 2018,

^[35] Mighty Corp. v. E. & J. Gallo Winery. 478 Phil. 61  , 639-640 (2004).

^[36] Pastor v. Bibby Shipping Philippines,  Inc., G.R. No. 238842, November  19,2018, p. 7.

^[37]   Id. at 8-9.

^[38]   G.R. No. 213874, June 19,2019.

^[39]   Id. at 6.

^[40] Rollo, p. 42.

^[41] CA rollo, pp. 126-127.

^[42] Id. at 127.

^[43] Id. at 128.