8/26/2020 E-Library - Information At Your Fingertips: Printer Friendly deliberate act of the employee to disregard his own personal safety.[56] Here, there is no showing that the latter was informed that surgery was the sole remedy to address his back injury nor warned of the effect of his choice of physical therapy. Given the foregoing circumstances, the Court finds that the NCMB did not gravely abuse its discretion in holding that petitioner is deemed permanently and totally disabled and should be entitled to the corresponding disability benefits. II. As to the amount of petitioner's entitlement, Article 25 (1) of the CBA provides that the company shall pay compensation to a seaman for any injury or death arising from an accident while in the employment of the company and for this purpose, shall effect a 24-hour insurance coverage in accordance with Appendix III[57] to the agreement.[58] An accident has been defined as an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated; an unforeseen and injurious occurrence not attributable to mistake, negligence, neglect or misconduct; that which happens by chance or fortuitously, without intention and design, and which is unexpected, unusual, and unforeseen.[59] Here, petitioner was performing his duty, i.e., sanding works, as an Able Seaman when he heard a snap and crunching sound in his back immediately followed by tremendous pain.[60] He could not have anticipated such unusual and unexpected snap in his back, since he merely exerted normal force with his upper extremities and such exertion does not at all times cause back injury. Thus, for being an unintended and unforeseen injurious occurrence, the sudden snap on petitioner's back could qualify as an accident. Moreover, as aptly observed by the NCMB, respondents did not include in its evidence page three (3) of the Medical Report Form, which reveals that the certifying doctor encircled the text "Yes" in response to the question "Is the illness due to an accident." [61] Thus, it appears that they have suppressed such evidence, which would have been an admission contained in a pleading that is conclusive against the pleader,[62] confirming that petitioner indeed suffered an accident. Accordingly, petitioner is entitled to the total and permanent disability compensation under the CBA in the amount of US$120,000.00, as well as attorney's fees equivalent to ten percent (10%) of the award for being forced to litigate. However, the claims for moral and exemplary damages are not warranted for lack of substantial evidence showing that respondents acted with malice or bad faith in refusing petitioner's claims. [63] WHEREFORE, the petition is GRANTED. The Decision dated March 28, 2018 and the Resolution dated July 10, 2018 of the Court of Appeals in CA-G.R. SP No. 144437 are hereby REVERSED AND SET ASIDE. The Decision dated October 1, 2015 and the Resolution dated January 7, 2016 of the National Conciliation and Mediation Board in MVA-093-RCMB-NCR-MVA-042-05-05-2015 are REINSTATED. https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/65474 6/11