REPUBLIC OF THE PHILIPPINESDepartment of the Labor and EmploymentNATIONAL LABOR RELATIONS COMMISSIONNational Capital RegionQuezon City

MARIANO P. ALAMILLOComplainant,

-versus-NLRC RAB NO. NCR CASE NO. (M)-NCR-05-06964-12before: HON LA. LADERAS, CATALINO R.

CLEENE MARITIME CORP., Local AgencyNEMESTO H. MORTEL JR., PresidentHANG WOO SHIP MANAGEMENT, PrincipalRespondents.X----------------------------------------------X

POSITION PAPER

Comes now complainant, through undersigned counsel, unto this Honorable Labor Arbitration Branch, most respectfully submits his Position Paper, and respectfully states that:

PRELIMINARY STATEMENT

The complainant is an experienced seafarer, having served herein respondent-local agency since 2009. However, during his last concluded contract of employment with the said respondent, boarding the respondent-Principals vessel MV RAINBOW SPRING, he incurred and suffered his present illness.

During the complainants term of employment with herein respondents and while the former was on the tour of his duty as SECOND ENGINEER, he suddenly experienced severe illness consisting of general body weakness, back and muscle pain, recurring severe headaches and persistent cold and fever.

The complainant was referred and brought to a hospital in Surabaya, Indonesia where he was subsequently diagnosed to have suffering from Hydronephrosis, Neprolithiasis & hypertrophy. Unfortunately, despite medication and treatment, his condition failed to improve and thus, his medical repatriation was advised by the attending physician and as such, he was subsequently medically repatriated on March 25, 2012.

Upon complainants arrival in the Philippines, he immediately reported his condition to his local manning agency. The latter, referred the former to their company designated physician at Metropolitan Medical Center.

Despite the complainants undergoing various medical treatments and his faithful compliance with his medications, his condition failed to resolves and thus, he filed this instant case before this Honorable Labor Arbitration Branch against the respondents seeking, among other, total disability compensation in accordance with the POEA-SEC provisions.

The Mandatory Conferences were conducted however, the parties failed to arrive into reasonable terms of amicable settlement. Thus, this Position Paper is filed pursuant to the directive issued by this Honorable Labor Arbitration Branch.

THE PARTIES

Complainant MARIANO P. ALAMILLO is a well experienced professional seafarer. He is represented by his counsel-of-record, RC CARRERA & ASSOCIATES LAW OFFICE, with office address Unit 8 Don Alex Building, del Monte Avenue corner west Avenue, Quezon City.

Respondent CLEENE MARITIME CORPORATION (cleene for brevity) is a domestic corporation registered in accordance with the laws of the Republic of the Philippines and duly licensed employment agency by the POEA with principal address at U301-303 3/F Krisambet Bldg., 1015 Zobel Roxas st., Malate, Manila. MR. NEMESTO H. MORTEL, JR. is impleaded in the instant case in his capacity as President of Respondent Cleene.

The herein respondents is represented by Del Rosario & Del Rosario Law Office with Office address at 15th Floor Pacific Star Building, Makati Avenue cor. Sen Gil Puyat Avenue, Makati City where Summons and other court processes of this honorable labor arbitration branch may serve upon them in the afore-cited address.

STATEMENT OF FACTS

The complainant is an experienced seafarer. He faithfully served herein local respondents continuously and faithfully since 2009, albeit, governed by different employment contract.

In his last concluded employment contract with the local respondents, his services as Second Engineer was re-engaged for and in behalf of the local respondents principal HANG WOO SHIP MANAGEMENT LTD., boarding the latters vessel MV RAINBOW SPRING. The said employment has a period of twelve (12) months with basic monthly salary of US$1,400.00 exclusive of overtime and other benefits. The said employment contract commenced on August 1, 2011. Copy of complainants employment contract is hereby attached and marked as ANNEX A.

Worth to note that the complainant underwent and subsequently passed every pre-employment medical examination (PEME) conducted to him as a requirement of respondents employment. He was thus declared fit for sea duty. Copy of his PEME dated July 30, 2011 is hereby attached and marked as ANNEX B.

Sometime on February 2012 while the complainant was performing his usual seafaring duties on board, he incurred and suffered his present illness consisting of general body weakness, intolerable lower back pain and muscle pain. This was accompanied by severe headaches persistent colds and recurring fever.

Concerned with his medical condition, the complainant reported the same to his chief officer, the captain of the vessel. The latter, afforded him only of medicine: paracetamol for pain relief.

However, the complainants condition worsens and aggravated to the point that his duty on board has already been affected and thus, he requested for medical attention. He was referred to a Hospital in Surabaya, Indonesia where he was diagnosed to have suffering from Hydronephrosis, Neprolithiasis & hypertrophy. Copy of the medical report of the said hospital is hereby attached and marked as ANNEX C. Also, copy of complainants seamans medical report executed by the Captain of the vessel is hereby attached and marked as ANNEX D.

The complainant continue performing his seafaring duties on board despite his illness however on March 23, 2012, the symptoms he is suffering aggravated which prompted the complainant to write a letter to his captain requesting his repatriation by reason of his illness. Copy of complainants letter to the master of the said vessel is hereby attached and marked ANNEX E.

On March 25, 2012, the complainant was medically repatriated. Upon his arrival here, he immediately reported to his local manning agency for appropriate medical attention. The latter, referred him to their company designated physician at Metropolitan Medical Center for medical examinations.

Despite medical and laboratory examinations and workups, the complainants condition remains unresolved. And that, period of 120 days from the time of his repatriation has already lapse without any clear resolution to his present medical condition as the complainant still suffers the effect of his illness which he incurred during his employment contract with the respondents and while the former is in the performance of his duties for and in behalf of the latter.

The respondents refused to give herein complainant his disability compensation thus; complainant filed this instant complainant against his employer, the respondents to seek relief in accordance with the applicable law and appropriate jurisprudence.

ISSUESThe main issue to be resolved in this case is whether or not complainant is entitled to recover his permanent disability benefits in accordance with the provisions of POEA-SEC, sick wages for 120 days, moral and exemplary damages, attorney's fees and other benefits provided by law.

DISCUSSION

The complainant respectfully submits that he is entitled to recover full permanent and total disability compensation with the respondents under the provisions of the POEA-SEC in the sum of US$60,000.00.

The complainant is entitled to recover his disability benefits as provided under the POEA-SEC by reason of his illness incurred during the existence of his contract of employment with the respondents and while the former is performing his seafaring duties on board.

Worth-related illness has been defined as any sickness resulting to disability or death as a result of an occupational disease listed under Section 32-A of this contract with the conditions set therein satisfied[footnoteRef:1]. Citing further that [1: Item 12, Definition of Terms, POEA-SEC.]

Citing the pertinent provisions of POEA-SEC, to wit:

SECTION 20. COMPENSATION AND BENEFITSxxx xxx xxx

B. 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:

1. The employer shall continue to pay the seafarer his wages during the time he is on board the vessel;

2. If the injury or illness requires medical and/or dental treatment in a foreign port, the employer shall be liable for the full cost of such medical, serious dental, surgical and hospital treatment as well as board and lodging until the seafarer is declared fit to work or to repatriated. However, if after repatriation, the seafarer still requires medical attention arising from said injury or illness, he shall be 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. 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[footnoteRef:2]. For this purpose, the seafarer shall submit himself to a postemployment 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. 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 doctors decision shall be final and binding on both parties. [2: Emphasis ours.]

4. Those illnesses not listed in Section 32 of this Contract are disputably presumed as work related[footnoteRef:3]. [3: Emphasis ours.]

5. Upon sign-off of the seafarer from the vessel for medical treatment, the employer shall bear the full cost of repatriation in the event the seafarer is declared (1) fit for repatriation; or (2) fit to work but the employer is unable to find employment for the seafarer on board his former vessel or another vessel of the employer despite earnest efforts.

6. In case of permanent total or partial disability of the seafarer caused by either injury or illness the seafarer shall be compensated in accordance with the schedule of benefits arising from an illness or disease shall be governed by the rates and the rules of compensation applicable at the time the illness or disease was contracted[footnoteRef:4]. [4: Emphasis ours.]

xxx xxx xxx

SECTION 32-A OCCUPATIONAL DISEASES

For an occupational disease and the resulting disability or death to be compensable, all of the following conditions must be satisfied:

1. The seafarer's work must involve the risks describe herein;2. The disease was contracted as a result of the seafarer's exposure to the describe risks;3. The disease was contracted within a period of exposure and under such other factors necessary to contract it;4. There was no notorious negligence on the part of the seafarer.

Here, all the above-enumerated requisites for compensability existed. The nature of complainants duties necessarily involved the risk of having the said illness. Complainants illness consisting of the following, viz: Hydronephrosis, Neprolithiasis & Hypertrophy. Hydronephrosis has been defined as a condition where one or both kidneys become stretched and swollen as a result of a build-up of urine inside the kidney(s).[footnoteRef:5] xxx Kidney stonesare another common cause of hydronephrosis in both men and women. Kidney stones are small stones that are made up of various substances that form in the kidneys. They can sometimes travel out of a kidney and into the ureters where they can block the flow of urine.[footnoteRef:6] The most common symptom of hydronephrosis is a severe pain that develops in your back or side, between your ribs and hip. On the other hand, Nephrolithiasis has been medically defined as Kidney stones. It has been medically determined that the cause of kidney stone, inter alia, Dietary factors that increase the risk of stone formation include low fluid intake and high dietary intake of animal protein, sodium, refined sugars, fructose and high fructose corn syrup,[5] oxalate, grapefruit juice, apple juice, and cola drinks.[footnoteRef:7] While Hypertrophy on the other hand has been defined as Enlargement or overgrowth of an organ or part of the body due to the increased size of the constituent cells.[footnoteRef:8] [5: http://www.nhs.uk/Conditions/Hydronephrosis/Pages/Introduction.aspx] [6: http://www.nhs.uk/Conditions/Hydronephrosis/Pages/Causes.aspx] [7: http://en.wikipedia.org/wiki/Kidney_stone] [8: http://www.medterms.com/script/main/art.asp?articlekey=25464]

Accordingly, the illness of complainant such as kidney stone is an illness which is acquired, among others, on poor eating lifestyle and restraint in urination. In the case of the complainant, it is the respondent who provides the provisions of the vessel for its journey. The complainant has no choice of meal/food to eat but only take as what the respondents provides for the ship hence, it is the responsibility of the respondent-employer to provide the complainant of a healthy working amenities or facilities. In addition, his illness can be reasonably attributed to the nature of his employment when the complainant cannot urinate on time because of the demand of his duties to be onsite at all times. The nature of his work and the facilities provided by the respondent for its employees is the logical contributing factor of his illness and thus, his illness can be logically attributed as work related illness as he acquired it on board and during the term of his employment.

Assuming without admitting that the complainants illness is not work-related, as it has no direct connection with the duties of the complainant on board. The same is still compensable under existing Jurisprudence stating that, to wit:

In the determination of compensability, what the law requires is a reasonable work connection and not a direct causal relation[footnoteRef:9]. It is enough that the hypothesis on which the workmens claim is based is probable. Probability, not the ultimate degree of certainty, is the test of proof in compensation proceedings. (GSIS vs. Emmanuel Cuntapay, G.R. No. 168862, April 30, 2008) [9: Emphasis ours.]

As an official agent charged by law to implement social justice guaranteed and secured by the Constitution, the ECC should adopt a liberal attitude in favor of the employee in deciding claims for compensability especially where there is some basis in the facts for inferring a work connection with the incident. This kind of interpretation gives meaning and substance to the compassionate spirit of the law as embodied in Article 4 of the New Labor Code which states that all doubts in the determination and interpretation of the provisions of the Labor Code including its implementing rules and regulations should be resolved in favor of labor (Employees Compensation Commission vs. Sanico, 321 SCRA 268) "Where the causes of an ailment are unknown to and/or undetermined even by medical science, the requirement of proof of any causal link between the ailment and the working conditions should be liberalized so that those who have less in life will have more in law." (Mora, Jr. vs. Employees' Compensation Commission, G.R. No. 62157, Dec. 1, 1987)

Here, as we already discussed that there exist link between the illness of the complainant and the nature of his work and his working environment. A reasonable connection has already established which justify our claims. There is not direct proof needed. A reasonable and logical link between his illness and his work is enough for one illness to be compensable.

The complainants argument is supported by several decided Supreme Court cases:"Where it was established that the claimant's ailment occurred during and in the course of his employment, it must be presumed that the nature of the claimant's employment is the cause of the disease."[footnoteRef:10](Republic vs. Mariano, 400 SCRA 86) [10: Emphasis ours.]

It is not required that the employment be the sole factor in the growth, development or acceleration of the illness to entitle the claimant to the benefits provided therefore. It is enough that the employment had contributed, even in a small degree, to the development of the disease.[footnoteRef:11] (Wallem Maritime Services, Inc. vs. NLRC (318 SCRA 623) [11: Emphasis ours.]

x x x compensability of an ailment does not depend on whether the injury or disease was pre-existing at the time of the employment but rather if the disease or injury is work related or aggravated his condition. (More Maritime Agencies, Inc. vs. NLRC, 307 SCRA 189)

But even assuming that the ailment of Faustino Inductivo was contracted prior to his employment on board MT Rowan, this is not a drawback to the compensability of the disease. It is not required that the employment be the sole factor in the growth, development or acceleration of the illness to entitle the claimant to the benefits provided therefore. It is enough that the employment had contributed, even in a small degree, to the development of the disease and in bringing about his death. x x x xNeither is it necessary, in order to recover compensation, that the employee must have been in perfect condition or health at the time he contracted the disease. Every workingman brings with him to his employment certain infirmities, and while the employer is not the insurer of the health of the employees, he takes them as he finds them and assumes the risk of liability. If the disease is the proximate cause of the employees death for which compensation is sought, the previous physical condition of the employee is unimportant and recovery may be had therefore independent of any pre-existing disease. (Citing More Maritime Agencies, Inc., et al. vs. National Labor Relations Commission, et al., G.R. No. 124927, 18 May 1999).

"But even assuming that the ailment of Homicillada was contracted prior to his employment with MV Rhine, this fact would not exculpate petitioners from liability. Compensability of an ailment does not depend on whether the injury or disease was pre-existing at the time of the employment but rather if the disease or injury is work-related or aggravated his condition. It is indeed safe to presume that, at the very least, the arduous nature of Homicillada's employment had contributed to the aggravation of his injury, if indeed it was pre-existing at the time of his employment. Therefore, it is but just that he be duly compensated for it." (More Maritime Agencies, Inc. vs. NLRC, G.R. No. 124927, May 18, 1999, 307 SCRA 189)

We cannot rule otherwise. Reynaldo Aniban was healthy at the time he boarded the vessel for his foreign employer. His medical records reveal that he had no health problem except for a defective central vision secondary to injury. Hence, he was certified fit to work as radio operator by the examining physician. However, R/O Aniban died three (3) months after he boarded Kassel due to myocardial infarction. As aforesaid, the POEA ruled that the cause of death could be considered occupational. x x x. Besides we have already repeatedly ruled that death due to myocardial infarction is compensable. In Eastern Shipping Lines, Inc. vs. POEA, although compensability was not the main issue, we upheld the decision of the POEA adjudging as compensable death of a seaman on board the vessel of his foreign employer due to myocardial infarction.

x x x We have already recognized that any kind of work or labor produces stress and strain normally resulting in the wear and tear of the human body. It is not required that the occupation be the only cause of the disease as it is enough that the employment contributed even in a small degree to its development[footnoteRef:12] (Heirs of the Late R/O Reynaldo Aniban versus NLRC, G.R. No. 116354, December 4, 1997). [12: Emphasis ours.]

Conformably with this ruling, the POEA Standard Employment contract itself particularly Section 20, Par. B, sub-par. 4 of the POEA Standard Employment provides that those illnesses not listed in Section 32 of the contract are disputably presumed as work related.

Going further, the complainant was medically declared unfit for work as a consequence of the illness he incurred this is evidenced by his seamans medical report (see attached Annex D). On his PEME dated July 29, 2011, he was declared fit for work (see attached Annex B). Thus, logic dictates that the illness which he incurred during the term of his employment could reasonably attributable to the nature of his work. At any rate, his illness has been established by the medical assessment of an independent physician, Dr. Manuel Jacinto, Jr. whereby, the latter affirmed the present illness of the complainant and further stated that complainants illness is total and permanent in nature and its cause is work-related or work aggravated. The full medical report of Dr. Jacinto and hereby attached and marked as ANNEX F.

At any rate, POEA-SEC does not exclusively provide that only the company designated physician could assess and treat the seafarers. Other medical practitioners chosen and preferred by the seafarers himself could also treat and assess the seafarers. The law recognizes the right of the seafarer to choose his own physician especially if the physician has the trust and confidence of the seafarer. It must be noted that the prime consideration in a doctor-patient relationship is trust and confidence. In the case of Veritas Maritime Corp., et al v. NLRC, et al., CA-G.R. SP No. 65639, February 27, 2003, the Supreme Court ruled as follows:

"The POEA standard contract does not provide that the determination is to be made exclusively by the company designated physician. Absent additional words and expressions indicating the parties' desire and intention that any determination of sickness or disability should only be done by a person selected by them or other contractual provision showing the same intention or objective, the stipulations should not be construed as to restrict the determination of the disability to the company physician. Unless the parties make it very clear, by employing definite, clear-cut, unmistakable and appropriate language limiting the person who can determine the disability of an employee, the provision should not be treated as mandatory or restrictive but merely permissive. There must be an accompanying language clearly and categorically expressing their purpose, such as 'only', 'solely', 'exclusively' or 'limited to', to say the least. A perusal of the provisions cited does not reveal any.

Likewise in the case of Seagull Maritime Corporation and Seagiant Shipmanagement Co. ltd. vs. Jaycee Dee and NLRC, G.R. No. 165156, the Supreme Court ruled thus:

Thus, the POEA Standard Employment Contract recognizes the prerogative of the seafarer to request a second opinion, and for this purpose, to consult a physician of his choice. In case of disagreement between the assessments of the company-designated physician and the seafarers doctor of choice, they may agree to refer the seafarer to a third doctor. In such a case, the third doctors assessment shall be final and binding on both the employer and the seafarer.It was therefore not erroneous at all for the NLRC and the Court of Appeals to base their decisions on the assessment of private respondents chosen physicians. Dr. Meriales and Dr. Bundoc especially since their conclusion was arrived at only after a consideration of the medical findings of Dr. Manalang, the company-designated physician

Significantly, Dr. Manalangs medical findings did not differ from those of the other doctors consulted by private respondent. Essentially, he shared their opinion that the triple arthrodesis operation could not guarantee the restoration of private respondents former physical condition. His pronouncement that all that the operation might do is to enable private respondent to walk for daily activities with a less painful or more comfortable left foot insinuated that private respondents disability was permanent. His medical opinion could be safely interpreted to mean that, as a result of the injury, private respondent would no longer be able to perform strenuous activities such as the rigorous duties of a seaman.

In the case of Leopoldo Abante vs. KGJS Fleet Management Manila, et al., G.R. No. 182430, December 4, 2009, the Supreme Court held thus:

Courts are called upon to be vigilant in their time-honored duty to protect labor, especially in cases of disability or ailment. When applied to Filipino seamen, the perilous nature of their work is considered in determining the proper benefits to be awarded. These benefits, at the very least, should approximate the risks they brave on board the vessel every single day.

Accordingly, if serious doubt exists on the company-designated physicians declaration of the nature of a seamans injury and its corresponding impediment grade, resort to prognosis of other competent medical professionals should be made. In doing so, a seaman should be given the opportunity to assert his claim after proving the nature of his injury. These evidences will in turn be used to determine the benefits rightfully accruing to him[footnoteRef:13]. [13: Emphasis and underscoring ours.]

In the case of Maunlad Tranport Inc., et al. vs. Flaviano Manigo, Jr., G.R. No. 161416, June 13, 2008, the Supreme Court held thus:x x x nowhere did we hold that the company-designated physicians assessment of the nature and extent of seamans disability is final and conclusive on the employer company and the seafarer-claimant. While it is the company-designated physician who must declare that the seaman suffered a permanent disability during employment, it does not deprive the seafarer the right to seek a second opinion.

In the case of NYK-Fil Ship Management v. Talavera, G.R. No. 175894, November 14, 2008, citing Seagull Maritime Corp. v. Dee, G.R. No. 165156, April 2, 2007, 520 SCRA 109, 117-119, the Supreme Court held thus:

This provision substantially incorporates the 1996 POEA Standard Employment Contract. Passing on the 1996 POEA Standard Employment Contract, this Court held that [while it is the company-designated physician who must declare that the seaman suffers a permanent disability during employment, it does not deprive the seafarer of his right to seek a second opinion, hence, the Contract recognizes the prerogative of the seafarer to request a second opinion and, for this purpose, to consult a physician of his choice[footnoteRef:14]. [14: Emphasis and underscoring ours.]

Here, the medical assessment made by Dr. Jacinto Jr., accurately reflects the current medical state of the complainant. It tends to prove that the condition of the complainant has not been fully resolved despite the lapse of the period of 120 days.

Based on the following premises, complainant respectfully argues that he has suffered from work related illness and that prevented, it has rendered him unable to continue his seafaring duties in any capacity for more than 120 days from his repatriation already. Thus, his claim for permanent disability is proper. Citing various Supreme Court cases regarding this matter, viz:

"Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he losses the use of any part of his body. (Government Service Insurance System v. Gadiz, G.R. No. 154093, 8 July 2003, 405 SCRA 450, 454; Ijares v. Court of Appeals, G.R. No. 105854, 26 August 1999, 313 SCRA 141, 149-150.) As gleaned from the records, respondent was unable to work from August 18, 1998 to February 22, 1999, at the least, or more than 120 days, due to his medical treatment. This clearly shows that his disability was permanent.

Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work, which a person of his mentality and attainments could do. (Philippine Transmarine Carriers, Inc. vs. NLRC, G.R. No. 123891, 28 February 2001, 353 SCRA 47, 53.) It does not mean absolute helplessness. In disability compensation, it is not the injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one's earning capacity. (Ibid., citing Bejerano v. Employees' Compensation Commission, G.R. No. 84777, 30 January 1992, 205 SCRA 598, 602.)

Although the company-designated doctors and respondents physician differ in their assessments of the degree of respondents disability, both found that respondent was unfit for sea-duty due to respondents need for regular medical check-ups and treatment which would not be available if he were at sea. There is no question in our mind that respondents disability was total."

Likewise, in the case of Remigio vs. NLRC, et al., G.R. No. 159887, 12 April 2006, the Supreme Court held thus:That the company-designated physician did not specify that petitioner suffered from any disability should not prejudice petitioners claim for disability benefits. In the first place, it is well to note that it was the respondent agency which referred petitioner to the American Outpatient Clinic giving only the specific instruction that the designated physician indicate in the medical report the estimated treatment period and the exam conducted. Moreover, what is important is that the facts stated in the medical report clearly constitute permanent total disability as defined by law. It is well-settled that strict rules of evidence are not applicable in claims for compensation and disability benefits. Disability should not be understood more on its medical significance but on the loss of earning capacity. As in the case of Crystal Shipping, Inc. [G.R. No. 154798, 20 October 2005] an award of permanent total disability benefits in the petition at bar 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. [The Court also cited Phil. Transmarine Carriers, Inc. vs. NLRC, G.R. No. 123891, 28 February 2001, 353 SCRA 47, citing NFD International Manning Agents, Inc. vs. NLRC, G.R. No. 107131, 13 March 1997, 269 SCRA 486, 494; and Phil. Transmarine Carriers vs. NLRC, G.R. No. 123891, 28 February 2001, 353 SCRA 47]

Likewise, in the recent rulings of the Supreme Court in the case of Wallem Maritime Services, Inc.., et al. vs. NLRC and Tiburcio dela Cruz, G.R. No. 163838, September 25, 2008, the Supreme Court held:Applying the foregoing definition of permanent disability, the Court therein held that, notwithstanding the certification issued by the company-designated physician that in 8-10 months the seafarer therein may already work as a pianist, the fact remains that for the past 11 to 13 months, the latter had not been able to perform his customary work as a drummer, and "this, by itself, already constitutes permanent total disability.

The foregoing concept of permanent disability has been consistently employed by the Court in subsequent cases involving seafarers, such as in Crystal Shipping, Inc. v. Natividad, in which it was reiterated that permanent disability means the inability of a worker to perform his job for more than 120 days. Also in Philmare, Inc. v. Suganob, notwithstanding the opinion of the company-designated physician that the seafarer therein was fit to work provided he regularly took his medication, the Court held that the latter suffered from permanent disability in view of evidence that he had been unable to work as chief cook for more than 7 months. Similarly, in Micronesia Resources v. Cantomayor and United Philippine Lines, Inc. and/or Holland America Line, Inc. v. Beseril, the Court declared the seafarers therein to have suffered from a permanent disability after taking evidence into account that they had remained under treatment for more than 120 days, and were unable to work for the same period.

Thus, it is not accurate to state -- as the CA and the NLRC did - that respondent is presumed permanently disabled just because, after 120 days from his repatriation due to injury, he was not declared fit to resume sea duty by Dr. Lim. Nor would it be correct for petitioners to claim that respondent does not suffer from permanent disability just because at the end of an 8-month period of evaluation and treatment, Dr. Lim had declared him fit to work. Rather, the true test of whether respondent suffered from a permanent disability is whether there is evidence that he was unable to perform his customary work as mess man for more than 120 days.[footnoteRef:15] [15: Emphasis ours.]

The Court, stressed that the test to determine the gravity of disability is the impairment or loss of ones capacity to earn and not its mere medical significance, quoted its previous ruling in the case of Bejerano vs. ECC (205 SCRA 598), to wit:Permanent total disability means disablement of an employee to earn wages in the same kind of work or work of a similar nature that he was trained for or accustomed to perform, or any kind of work which a person of his mentality and attainment can do. It does not mean state of absolute helplessness but inability to do substantially all materials acts necessary to the prosecution of a gainful occupation without serious discomfort or pain and without material injury or danger to life.It could not be understood why respondents refused until now complainants claim for permanent disability compensation although complainants claim for permanent disability compensation is clearly meritorious and supported by strong physical evidence

The complainant respectfully submits that he is likewise entitled to recover from herein respondents his sickness allowance for a period of 120 days from the time of his repatriation in the sum of US$5,600.00[footnoteRef:16] [16: US$1,400 (complainants basic salary) x 4 months (120 days) = US$5600.00]

The complainant reiterates the pertinent provisions of the POEA-SEC, viz: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[footnoteRef:17]. [17: Emphasis ours.]

Here, as clearly indicated and mandated by the aforecited provisions, the complainant is entitled to the said sickness allowance thus, it is but just to give the complainant his sickness allowance of 120 days for having incurred and suffered his work-related illness which under the law and existing jurisprudence, considered as permanent and total disability.

Considering that the monthly basic salary of herein complainant as second engineer of the vessel is US$1,400.00 (exclusive of overtime and other benefits), the complainant submits that he is entitled to receive from respondents the sum of US$5,600.00.

The complainant respectfully submits before this Honorable Labor Arbitration Branch of his entitlement for damages, specifically moral and exemplary damages under the existing Laws.

The refusal of respondents to pay complainant his legitimate and lawful permanent disability compensation is a clear case of bad faith and malice. Complainant has done his duty, for the interest of his employer, to the best of his ability so that it is indeed sad that despite complainants faithful and devotion to his duty respondents had neglected and abandoned him, as evidenced by respondents unjustified refusal to pay him his permanent disability compensation.

We would like to stress that the migrant workers are the modern-day heroes of our time. Quite often they find themselves laboring in the scorching heat and the freezing cold in foreign lands. Their woes often remain unheard, their tears unnoticed. It is time that the arms of justice reach out to them workers and cradle them gently in her bosom[footnoteRef:18]. [18: More Maritime Agencies, Inc. vs. NLRC, 307 SCRA 189.]

As the Supreme Court thus ruled "An overseas workers constitute an exploited class. Most of them came from the poorest sector of our society. They are thoroughly disadvantaged. Their profile shows they live in suffocating slums, trapped in an environment of crime. Hardly literate and in ill health, their only hope lies in job they can hardly find in our country. Their unfortunate circumstance makes them easy ploy to avaricious employer. They will climb mountains, cross the seas; endure slave treatment in foreign lands just to survive. Out of despondence, they will work under subhuman conditions and accept salaries below the minimum. The least we can do is to protect them with our laws in our land."[footnoteRef:19] [19: Chavez vs. Perez, et al., G.R. No. 109808, March 1, 1999.]

Complainant has filed this complaint in order to seek justice and satisfaction and for this he was forced to litigate and engage the services of counsel. With regard to the claim for moral damages and attorneys fees, we would like to emphasize that the act of respondents in withholding to the payment of, among other, permanent disability is a clear indication that respondents are acting in bad faith in their dealings with Complainant.

For clear bad faith of respondents in their dealings to complainant, respondents are certainly liable for moral and exemplary damages in the sum of no less than P300, 000.00 each and attorneys fees equivalent to no less than ten percent (10%) of the total amount recovered.

Complainant suffered extreme emotional and physical pain because of the bad faith and neglect of Respondents. Complainant is self-indulgent in severe poverty because of lack of income, as he could not get any kind of employment because of his illnesses. The Complainant suffered intense emotional distress, physical suffering, serious anxiety and wounded feelings because he was unable to earn income resulting to his wretched life. Respondents therefore must be held liable for moral damages and exemplary damages in order to set the case as precedent and deter others in committing analogous acts as those committed by the herein respondents. A mans job being a property right duly protected by our laws, an employer who deprives an employee the right to defend himself is liable for damages consistent with Article 32 of the New Civil Code.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Case law establishes the following requisites for the award of moral damages: (1) there must be an injury clearly sustained by the claimant, whether physical, mental or psychological; (2) there must be a culpable act or omission factually established; (3) the wrongful act or omission of the defendant is the proximate cause of the injury sustained by the claimant; and (4) the award for damages is predicated on any of the cases stated in Article 2219 of the Civil Code.

Respondents are likewise liable for the attorneys fees.

Considering the fact that they have refused to settle the claim of complainant and that complainant was constrained to engage the services of counsel and for which complainant incurred expenses by way of attorneys fees.The award of attorneys fees in this case is proper because the refusal of respondents to pay complainants claims is unjustified and that complainants suffering was prolong because of the unjustified refusal of respondents to pay complainants claim for disability compensation. So that if ever complainant engaged the services of counsel in order to pursue his permanent disability compensation there is no one to blame except respondents. So that respondents must be held responsible for the cost of litigation as well as attorneys fees. Article 2208 of the New Civil Code provides some instances where attorneys fees may be recovered, to wit:1. When the defendants act or omission compelled the plaintiff to incur expenses to protect his interest;

2. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just, and demandable claim;

3. In an action for the recovery of wages of laborers and skilled workers.

The foregoing doctrine laid down by the Supreme Court readily supports complainants contention that respondents are indeed liable for attorneys fees.In actions for recovery of wages or where an employee was forced to litigate and incur expenses to protect his rights and interest, he is entitled to an award of attorneys fees. (Building Care Corporation vs. National Labor Relations Commission, 268 SCRA 666)

Attorneys fees to be awarded by a court when its claimant is compelled to litigate with third persons or to incur expenses to protect his interest by reason of an unjustified act or omission of the party from it is sought. (Solid Homes, Inc. vs. Court of Appeals, 235 SCRA 299)

In actions for recovery of wages or where an employee was forced to litigate and thus incur expenses to protect her rights and interests, even if not so claimed, an award of attorneys fees equivalent to ten percent (10%) of the total award is legally and morally justifiable. (Consolidated Rural Bank [Cagayan Valley], Inc. vs. National Labor Relations Commission, 301 SCRA 223)

PRAYER

WHEREFORE, premises considered it is most respectfully prayed before this Honorable Labor Arbitration Branch that the claims of complainants be paid jointly and severally by respondents, as follows:1. Permanent disability compensation in accordance with the POEA-SEC in the amount of SIXTY THOUSAND US DOLLARS (US$60,000.00);

2. Sickness allowance in the sum of FIVE THOUSAND SIX HUINDRED US DOLLARS (US$5,600.00);

3. Moral Damages in the sum of THREE HUNDRED THOUSAND PESOS (P300,000.00);

4. Exemplary damages in the sum of THREE HUNDRED THOUSAND PESOS (P300,000.00); and

5. Attorneys fees in the sum equivalent to 10% of the judgment award.

RESPECTFULLY SUBMITTED.Quezon City; August 15, 2012.

R.C.CARRERA & ASSOCIATES LAW OFFICECounsel for the ComplainantUnit 8 Don Alex Bldg.Del Monte Ave. cor. West Ave.1104 Quezon City

By:

ATTY. HEART C. LEROIBP No. 893326/Calmana chapter/3.12.12PTR No. 0789080/4.26.12ROLL No. 61581MCLE-not applicable[footnoteRef:20] [20: Admitted to the Bar in 2012.]

-And-

ATTY. REBENE C. CARRERACounsel for the ComplainantIBP Lifetime No. 558150; Pangasinan ChapterPTR No. 6012090/1-4-2012; Q.C.Roll No. 30774MCLE Compliance No. IV-0004715;02/28/2012; IBP Ortigas Center, Pasig City

COPY FURNISHED:

Del Rosario & Del Rosario Law Offices15th Floor Pacific Star Building, Makati Avenue cor. Sen Gil Puyat Avenue, Makati City.

CLEENE MARITIME CORPORATIONU301-303 3/F Krisambet Bldg., 1015 Zobel Roxas st., Malate, Manila.

MR. NEMESTO H. MORTEL, JR. President

RECEIVED BY:_________________DATE: __________________

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