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[G.R. No. 144426.January 31, 2001]

PULGO vs. SEAPOWER SHIPPING ENTERPRISES, INC., et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 31 2001.

G.R. No. 144426(Jerson A. Pulgo vs. Seapower Shipping Enterprises, Inc., et al.)

On April 11, 1995, respondent Seapower Shipping Enterprises, Inc., acting on behalf of its principal, Universe Maritime Limited, hired petitioner Jerson A. Pulgo as deck cadet on board the MT "Greek Fighter."

On February 10, 1996, while discharging his duties in Singapore, petitioner fell from the gangway and landed 30 feet below on the concrete pavement of the hatch. Petitioner was rushed to the Maritime Medical Center in Singapore where he was found to have suffered fractures on the right tibea, right fibula, right medical malleolus, right calcaneum, and lumbar spine and a dislocated right talonavicular joint. Eventually, he was repatriated back to the Philippines where he underwent medical treatment at the Manila Medical Center.

On April 17, 1996, petitioner filed a claim against respondent for payment of disability benefits in the amount of US$60,000.00; US$720.00 as sickness wage, medical, and hospitalization allowance; and attorney's fees equivalent to 10% of the judgment award.

In its answer, respondent alleged that while being an outpatient, petitioner was uncooperative in his medical treatment and that his claim for disability benefits lacked factual basis.

The Labor Arbiter dismissed petitioner's claim for disability benefits for lack of merit but ordered respondent to pay petitioner US$720.00 or its peso equivalent at the rate of exchange at the time of actual payment as sickness wage/benefits less P16,000.00 cash advances.

The Labor Arbiter's decision was affirmed by the National Labor Relations Commission (NLRC). On further appeal, the Court of Appeals affirmed the Labor Arbiter's decision. Hence this appeal by petitioner by way of petition of review.

Petitioner argues that the Court of Appeals erred in denying his claim for disability benefits even as it granted him sickness wage/benefits. He claims that the appellate court, as well as the Labor Arbiter and the NLRC, overlooked (1) the documents attached as Annexes 1-7 to respondent's answer before the Labor Arbiter and (2) the two medical certificates he submitted in a Manifestation and Motion, dated February 10, 1997, before the Labor Arbiter, all of which attest to his permanent disability.

The petition is without merit.

As respondent points out, the documents, consisting of medical reports on petitioner's condition, attached to its answer cannot be used as evidence of petitioner's permanent disability because they refer to the condition of the petitioner immediately following the injury and after his repatriation. On the other hand, the documents annexed to petitioner's Manifestation and Motion before the Labor Arbiter refer to two medical certificates, one, dated August 22, 1996, by Dr. Peter B. Bernardo of the Department of Orthopedics of the University of the Philippines College of Medicine and the other, dated October 30, 1996, by Dr. Amado M. San Luis of the Department of Clinical Neurosciences of the UERM Memorial Medical Center. The first certificate does not conclusively prove that petitioner is permanently disabled as it speaks of petitioner's fractures "as not yet totally healed," implying the possibility of full recovery. On the other hand, while Dr. San Luis' certificate states that petitioner is "permanently disabled," the same cannot be taken at face value and must be verified. Indeed, �20 B(3) of the parties' agreement provides:

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.

this purpose, the seafarer shall submit himself to a post-employment medical examination by a company-designated physician within three working days upon his return except when he is physically incapacitated to do so, in which case, a written notice to the agency within the same period is deemed as compliance. Failure of the seafarer to comply with the mandatory reporting requirement shall result in his forfeiture of the right to claim the above benefits. (Emphasis added)

In this case, it is not disputed that because petitioner failed to submit himself to examination and treatment, respondent's physician was not able to monitor and evaluate his physical condition and determine his fitness for work and compensability in compliance with the parties' agreement. Despite this, and in view of the said medical certificates submitted by petitioner, the Labor Arbiter ordered petitioner to submit himself to a medical examination before the Employees Compensation Commission (ECC). Petitioner, however, did not comply with the Labor Arbiter's directive. He also failed to present himself to a government hospital for evaluation of his alleged disability despite commitment by his counsel, thus constraining the Labor Arbiter to dismiss his claim for disability benefits. As the Court of Appeals stated, "The inaction of the petitioner on this matter leads us to believe that he was not actually seriously ill."

WHEREFORE, respondent's comment to the petition for review is NOTED and the aforesaid petition is DENIED for lack of showing that the Court of Appeals committed any reversible error.

Very truly yours,

(Sgd.) TOMASITA M. DRIS
Clerk of Court

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