Paulino Ungos III

Lawyer | Law Professor | Author

Tag: 2019-01

  • Rebutting the Presumption of Regularity in the Performance of Official Duty

    In John Hay Management Corp. v. Pascua,1G.R. No. 241497, January 10, 2019. the respondent therein successfully rebutted the presumption of regularity relating to service of decisions. She was able to prove that the person who received the Decision of the Office of the Labor Arbiter was not her counsel’s authorized agent. The 10-day period for filing her appeal thus commenced only on actual delivery of the Decision to her counsel. The Court ruled:

    Indeed, the presumption is that the decision was delivered to an authorized agent in the office of respondent’s counsel, Atty. Edward Chumawar, in the absence of proof to the contrary. It is likewise a fundamental rule that unless the contrary is proven, official duty is presumed to have been performed regularly and judicial proceedings regularly conducted, which includes the presumption of regularity of service of summons and other notices. The registry return of the registered mail as having been received is prima facie proof of the facts indicated therein. Thus, it was necessary for respondent to rebut that legal presumption with competent and proper evidence. This, she was able to do through a certification from the Provincial Human Resources Management Office of the Bontoc, Mountain Province that Gina Faycho was its employee from January 2, 2014 to December 31, 2014. Clearly, therefore, Gina Faycho was neither a clerk of Atty. Chumawar, nor a person in charge of his office. Hence, her receipt of the Decision on October 10, 2014 cannot be considered as notice to Atty. Chumawar. Since a copy of the Decision was actually delivered to Atty. Chuamawar only on October 13, 2014, it was only on this date that the ten-day period for the filing of respondent’s appeal commenced to run.2Emphasis supplied.

    Further Reading:

    • John Hay Management Corp. v. Pascua, G.R. No. 241497, January 10, 2019.

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  • Prematurely Filing a Complaint for Permanent Total Disability Benefits

    On 3 November 2010, F.J. Lines, Inc. Panama, through its agent, Eastgate Maritime Corporation, hired the seafarer on board the vessel MV Corona Lions to work as a Chief Cook. The seafarer underwent the requisite Pre-Employment Medical Examination and was found fit for sea duty. Thereafter, he boarded the vessel on 4 December 2010.

    Sometime in November 2011, while in the performance of his duties, the seafarer experienced pain in his right leg radiating to his lower extremities. He reported the matter to the Master of the vessel who, in turn, brought him to a hospital in Reihoku, Japan on 14 November 2011. There, he was diagnosed to be suffering from urinary stone in his right urinary tract and was prescribed pain reliever drugs. Due to persistent back and leg pains, he was again taken to a hospital in Newcastle, England on 16 December 2011 where the doctor recommended his medical repatriation for further management and treatment.

    Upon arrival in Manila on 19 December 2011, the seafarer was given medical attention by the company-designated physician. He was subjected to rigorous medical examinations, was prescribed medications and was put on therapy to address his condition. On 19 April 2012, the company-designated physician issued a medical opinion stating, among others, that the seafarer’s lumbar spondylosis will require further treatment. As such, he gave an interim assessment of Grade 8. Thereafter, the seafarer continuously received medical treatment from the company-designated physicians. However, on 8 May 2012, the seafarer filed a complaint for total and permanent disability benefits and asserted that his illness was a result of an accident that occurred while he was performing his duties as chief cook.

    Question:

    Will the complaint prosper?

    Answer:

    No. The complaint should be dismissed for lack of cause of action.

    Jurisprudence dictates that a seafarer may have basis to pursue an action for total and permanent disability benefits in any of the following conditions:

    • 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;
    • 240 days had lapsed without any declaration as to his fitness to engage in sea duty or disability being issued by the company-designated physician;
    • 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 third doctor chosen under Section 20 (A) (3) of the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships1Philippine Overseas Employment Administration Memorandum Circular No. 10, Series of 2010 are of a contrary opinion;
    • the company-designated physician acknowledged that he is partially permanently disabled but other doctors who he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well;
    • the company-designated physician recognized that he is totally and permanently disabled but there is a dispute on the disability grading;
    • the company-designated physician determined that his medical condition is not compensable or work-related but his doctor-of-choice and the third doctor selected under Section 20 (A) (3) of the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships2Philippine Overseas Employment Administration Memorandum Circular No. 10, Series of 2010 found otherwise and declared him unfit to work;
    • the company-designated physician declared him totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and
    • 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.3Emphasis supplied.

    In the present case the seafarer filed his complaint on 8 May 2012, or 141 days from his medical repatriation on 19 December 2011. It was premature for him to invoke his claim for permanent total disability benefits at this time. As such, the complaint should have been dismissed as the seafarer had no cause of action.

    Further Reading:

    • Torillos v. Eastgate Maritime Corp., G.R. Nos. 215904 & 216165, January 10, 2019.

  • Inconsistent Positions Towards Brazen Deception

    In Styleworks Garment Export v. Bentor,1G.R. No. 241888, January 10, 2019. the Supreme Court pointed out the inconsistent positions pursued by the petitioners that it no longer gave due course to their arguments. The Court ruled:

    Essentially, petitioners argue that they should not have been ordered to pay respondents separation pay and instead allowed to find equivalent positions for them. Petitioners must, however, be reminded that they clearly stated in their Opposition to respondents’ Motion for Execution filed with the Labor Arbiter (LA) that taking petitioners back as workers would be prejudicial to the company because they have already filled up their former positions. They did not mention therein that it was possible for them to find or create positions equivalent to respondents’ former positions as to accommodate them, thus, leaving the impression that they could no longer take respondents back. However, when they were ordered to instead pay respondents their separation pay in lieu of reinstatement, petitioners made a turn around by asserting that they should have first been ordered by the LA to find equivalent positions for respondents. Clearly, petitioners were taking inconsistent positions to suit their purpose. It bears to state that “[a] party will not be allowed to make a mockery of justice by taking inconsistent positions which, if allowed, would result in brazen deception.”

    Further Reading:

    • Styleworks Garment Export v. Bentor, G.R. No. 241888, January 10, 2019.

  • Effects of Withdrawal of Complaint/Desistance

    During a disciplinary investigation of a recruitment violation, the recruiter posited that it should not be held liable for sickness allowance in view of the seafarer’s Affidavit of Desistance.

    In Interorient Maritime Enterprises, Inc. v. Valencia, Jr.,1G.R. No. 241621, January 7, 2019 the Supreme Court disagreed:

    Petitioner cannot escape liability on the strength of the Affidavit of Desistance executed by respondent. Suffice it to state that such act of desistance on the part of respondent will not bar the [Philippine Overseas Employment Administration] from proceeding with the case against petitioner x x x under relevant rules x x x.2Section 164, Rule V, Part VI of the Revised POEA Rules and Regulations Governing the Recruitment and Employment of Landbased Overseas Filipino Workers of 2016 states: “SECTION 164. Effects of Withdrawal of Complaint/Desistance. — The withdrawal of complaint/desistance shall not bar the Administration from proceeding with the investigation of the recruitment violation. The Administration shall resolve the case on the merits, if there is evidence warranting the imposition of appropriate penalties.”<br/>

    Section 148, Rule V, Part VII, of the 2016 Revised POEA Rules and Regulations Governing the Recruitment and Employment of Seafarers states: SECTION 148. Effects of Withdrawal of Complaint/Desistance. — The withdrawal of complaint/desistance shall not bar the Administration from proceeding with the investigation of the recruitment violation. The Administration shall resolve the case on the merits, if there is evidence warranting the imposition of appropriate penalties.

    Related Discussion on Sickness Allowance:

    Section 20 of the Amended Standard Terms and Conditions Governing the Overseas Employment of Filipino Seafarers On-Board Ocean-Going Ships3POEA Memorandum Circular No. 010, Series of 2010 provides:

    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

    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.

    The grant of sickness allowance is to afford a remedy to a seafarer during the period of his treatment as his inability to perform his sea duties would normally result in depriving him of compensation income.

    Further Reading:

    • Interorient Maritime Enterprises, Inc. v. Valencia, Jr., G.R. No. 241621, January 7, 2019.

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  • Factual Findings of Quasi-judicial Bodies

    Factual findings of quasi-judicial bodies like the National Labor Relations Commission, if supported by substantial evidence, are accorded respect and even finality, more so when they coincide with those of the Office of the Labor Arbiter. Such factual findings are given more weight when the same are affirmed by the Court of Appeals.

    Further Reading:

    • Toyota Pasong Tamo, Inc. v. Capitle, G.R. No. 242054, January 7, 2019.

  • Unsigned Probationary Employment Contracts

    The Supreme Court declared the employees as regular employees of Concentrix Daksh Services Philippines Corp. because their probationary employment contracts were unsigned and since the employer failed to explain to them the standards for regularization. The Court said:

    As correctly ruled by the CA, Concentrix failed to sufficiently prove that respondents were apprised of the reasonable standards set for their regularization at the time of their engagement; and more importantly, show how these standards were applied in respondents’ case. Notably, while Concentrix presented copies of respondents’ employment contracts which state, albeit generally, the expected areas for evaluation (e.g., communication skills, knowledge, skills application, attendance and tardiness, etc.), the same appear to be unsigned. At any rate, no proof was presented to convincingly show that the regularization standards, supposedly contained in the employment contracts, were adequately explained to them. As such, respondents were regular employees whose dismissal, absent a valid cause, was illegal.

    Further Reading:

    • Concentrix Daksh Services Philippines Corp. v. Palacio, G.R. No. 242673, January 7, 2019.

  • Concealment of Previous “Phlectenille, Right Eye”

    The seafarer was found to have concealed his previous illness: phlectenille, right eye. Nonetheless, this did not bar his disability claim for his present lower back injury.

    In TCM Tsakos Maritime Philippines, Inc.,1G.R. No. 241102, January 7, 2019. the Court ruled:

    [The seafarer’s] concealment of his previous illness and repatriation, as well as his receipt of corresponding disability benefits therefor, cannot bar his present claim because his previous illness, phlectenille, right eye, was not shown to be related in any way to his present illness of lower back injury.2Emphasis supplied.

    This Court had indeed disallowed the payment of disability benefits to seafarers in the past due to concealment or fraudulent misrepresentation. However, a review of these cases reveals that the prior injury or illness concealed by the seafarer was shown to be related to the injury or illness which was the subject of the seafarer’s pending claim.

    Further Reading:

    • TCM Tsakos Maritime Philippines, Inc. v. Calimpong, G.R. No. 241102, January 7, 2019.

  • Company-designated Physician’s Failure to Arrive at a Final Assessment of the Seafarer’s Fitness to Work

    In Teekay Shipping Philippines, Inc. v. Mateo,1G.R. No. 243258, January 7, 2019. the Supreme Court reiterated the effect should the company-designated physician fail to issue a final assessment of the seafarer’s fitness to work within the 120/240-day period from medical repatriation. The Court ruled:

    As correctly ruled by the CA, respondent’s work-related injury is deemed total and permanent by operation of law when the company-designated physician failed to arrive at a final assessment of respondent’s fitness to work within the 120/240-day treatment period following his repatriation on November 25, 2015. Moreover, the company-designated physician’s issuance of an Interim Disability Grade 11 is a mere initial determination of petitioner’s condition for the time being and therefore cannot be considered as a definite prognosis. Hence, the award of US$89,100.00 to respondent pursuant to the Collective Bargaining Agreement of the Philippine Seafarers Union, which covered respondent’s employment contract, must be sustained. In this regard, the CA cannot be faulted in sustaining the award of attorney’s fees as respondent was clearly compelled to litigate to protect his interest.

    Further Reading:

    • Teekay Shipping Philippines, Inc. v. Mateo, G.R. No. 243258, January 7, 2019.

  • Proper Recourse to Assail the Decisions or Orders of the Secretary of the Department of Labor and Employment

    In Augustin International Center, Inc. v. Zacarias,1G.R. No. 242043, January 7, 2019 the Supreme Court reiterated that a petition for certiorari (under Rule 65 of the Rules of Court) should be filed to assail the decisions or orders of the Secretary of the Department of Labor and Employment. According to the Court, “[s]uch petition for certiorari must be seasonably filed with the Court of Appeals within 60 days from the notice of the order denying one’s motion for reconsideration.”

    Side Note:

    Distinguish remedy in connection with the Secretary’s exercise of assumption powers vis-à-vis remedy relating to Secretary’s decision as a voluntary arbitrator.

    Further Reading:

    • Augustin International Center, Inc. v. Zacarias, G.R. No. 242043, January 7, 2019.

  • Extent of the Awards of Backwages and Separation Pay

    The workers of the Continuous Galvanizing Line department of the Philippine Steel Coating Corp. asserted that the awards of backwages and separation pay should not have been limited to the closure of the said department, but should have included the closure of Philippine Steel Coating Corporation’s entire business.

    The Supreme Court disagreed based on the principle that “an illegally dismissed employee’s entitlement to backwages and separation pay should be computed only up to the time that the said employee would have been expected to work with his/her employer had he/she not been illegally dismissed.” The Court said:

    In any event, petitioner’s claim that the judgment award should include the period after the closure of the Continuous Galvanizing Line (CGL) department until the closure of respondent Philippine Steel Coating Corporation’s (PhilSteel) entire business, lacks merit.

    It should be noted that petitioner never questioned the validity of the closure of PhilSteel’s CGL department. It only insists that the closure of the CGL department does not affect the computation of the period for the purpose of determining the retrenched employees’ monetary award because PhilSteel continued to operate until May 8, 2013.

    Petitioner should be reminded that an illegally dismissed employee’s entitlement to backwages and separation pay should be computed only up to the time that the said employee would have been expected to work with his/her employer had he/she not been illegally dismissed. Given that the validity of the CGL department’s closure is not disputed, the ten (10) retrenched employees assigned to the CGL department could not have been presumed to continue working for PhilSteel despite the valid closure of PhilSteel’s CGL department. There is nothing in the petition to show that the retrenched employees’ employments were not dependent on the operation of the CGL department in order to justify their claim of entitlement to backwages and separation pay until PhilSteel’s total closure on May 8, 2013. On the contrary, the retrenched employees were specifically referred to as “workers of the CGL line,” thereby showing that their employment was contingent on the existence of the CGL department. As such, the backwages and separation pay were properly computed only until the closure of the CGL department, or until August 2, 2012.

    Further Reading:

    • PhilSteel Workers Union-Olalia-KMU v. Philippine Steel Coating Corp., G.R. No. 241897, January 7, 2019.

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