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Republic of the Philippines Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION Quezon City

NATIONAL CAPITAL REGION ARBITRATION BRANCH

ABELARDO P. ZAMARRO, OFW-SEA BASED Complainant, NLRC OFW Case No. NCR-04-06262-12 -versus- Hon. Labor Arbiter Joel S. Lustria ALPHA SHIPPING MNGT., CORP., TS MARITIME CORP., JAPAN and /or JUNEL CHAN, Respondents, x----------------------------------x

COMPLAINANT’S POSITION PAPER

COMPLAINANT ABELARDO P. ZAMARRO by undersigned counsel,

respectfully submits this Position Paper, constitutive of his causes of action

against the respondents, to wit –

STATEMENT OF THE CASE

This is an action asking for payment by respondents of the total

permanent disability benefits, sick wages, moral and exemplary damages,

and attorney’s fees in favor of herein complainant Zamarro. These claims

are based on the collective bargaining agreement between complainant

Zamarro’s union (All Japan Seamen’s Union-Associated Marine Officers

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and Seamen’s Union of the Philippines [JSU-AMOSUP]) on one hand, and

respondent Alpha Shipping Management Corporation (on behalf of San-E

Maritime Corporation) on the other hand [IBF JSU/AMOSUP-IMMAJ CBA

for brevity]; and other pertinent labor laws and jurisprudence.

THE PARTIES

Complainant ABELARDO P. ZAMARRO (hereinafter referred to as

“Complainant Zamarro”) is of legal age, Filipino, married and a resident of

Purok 6 Asiongan, Langkaan-1, Dasmariñas City, Cavite. He can be served

with notices, orders, resolutions and other processes of this Honorable

Labor Arbitration Branch at the address of his undersigned counsel.

Respondent ALPHA SIPPING MANAGEMENT CORPORATION,

(hereinafter referred to as “Respondent Alpha”) is a Philippine corporation

operating as a manning agency engaged in the recruitment and placement

of seafarers for deployment abroad to their foreign principals. It may be

served with summons, orders, resolutions and other processes of this

Honorable Office at its office located at 10-B Jemarsons Place 11626 Pilar

Hidalgo Lim St., Malate, Manila NCR 1000.

Respondent TS MARITIME CORP., JAPAN (hereinafter referred to as

“TS Maritime”) is one of the foreign principals of respondent Alpha, where

complainant Zamarro was deployed. It is based in Japan. But for purposes

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of being sued and notified in the Philippines, service of notices, orders and

resolutions of this Honorable Office can be done at the office of

respondent Alpha, its resident agent in the Philippines.

Respondent JUNEL CHAN (hereinafter referred to as “Respondent

Chan”) is the President/CEO/Gen.Manager/POEA Registered Contact

Person of respondent Alpha. He is of legal age, Filipino and with office

address at 10-B Jemarsons Place 11626 Pilar Hidalgo Lim St., Malate,

Manila NCR 1000, where he may be served with notices, orders and

resolutions of this Honorable Labor Arbitration Office.

STATEMENT OF THE FACTS

1. On 16 May 2011, the parties entered into a Contract of Employment

for complainant Zamarro to serve as SECOND OFFICER on board the

vessel “MV LIBRE” under these terms, to wit:

DURATION OF CONTRACT : Nine [9] months POSITION : Second Officer BASIC MONTHLY SALARY : US$936.00 plus US$54 subsist. allow. HOURS OF WORK : 40 hrs/wk plus US$546 special allow. OVERTIME : US$597.00/mo. (F.O.T. 105 hrs.) VACATION LEAVE PAY : US$281.00/mo. (9 days leave pay) POINT OF HIRE : Manila, Philippines

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The employment contract was approved by the POEA on 19 May

2011. Copy of the said Contract of Employment is hereto attached as

Annex “A”.

2. Prior to the signing of the above-mentioned contract, respondent

Alpha sent complainant Zamarro to its accredited medical clinic for

pre-employment medical examination. Complainant Zamarro was

found fit for duty prior to his employment. Hence, he was hired by

respondents.

3. On 7 June 2011, upon instruction of respondent Alpha, complainant

Zamarro left the country to join the vessel MV LIBRE as its Second

Officer. He boarded the vessel on 8 June 2011 as shown in the

pertinent pages of complainant Zamarro’s Seaman’s Book, copy of

which is hereto attached as Annex “B”.

4. On 14 November 2011, five months after the commencement of his

contract of employment and while the MV LIBRE was in Tonda, Japan,

complainant Zamarro suddenly experienced severe chest pains and

difficulty in breahing. Because of this condition, the Master of MV

LIBRE prepared a “Requisition For Medical Treatment” form, the

necessity of which was confirmed by a certain Dr. Katsuhiro Shimizu.

According to Dr. Shimizu, complainant Zamarro had Congestive Heart

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Failure; Renal and Liver Disfunction. Complainant Zamarro was

declared unfit for duty and ordered to be immediately hospitalized.

Copy of the “Requisition For Medical Treatment” form is hereto

attached as Annex “C”.

5. The following morning, 15 November 2011, Zamarro collapsed and

fell unconscious on-board the MV LIBRE. Paralysis of the left side of

complainant Zamarro’s body was immediately noticed by the Master

of the vessel, a certain Capt. Ma. Complainant Zamarro’s case was

later on determined what is commonly known as a “stroke” as

hereinafter discussed. Copy of the said capatain’s e-mail report to

respondent TS Maritime is hereto attached as Annex “D”.

6. Immediately after the unconscious body of complainant Zamarro was

seen by the crew, he was brought to the Tokuyama Central Hospital

in Shunan City, Yamaguchi Prefecture, Japan. The Medical Certificate

issued by the said hospital and signed by Dr. Yuji Oada reads as

follows –

“This is to inform health status and illness for which above person (herein complainant Zamarro) is now under treatment. “This 52-year-old male had a heavy feeling in his chest from 4:00 AM 2011/11/15 and had a medical examination by a

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clinic at Shuna City (Shimizu Clinic). Shortly afterward he developed left hemiparesis and gait disturbance. He was introduced to our hospital at 11:00 AM. His BCG showed Af (atrial fibrillation) and USG revealed severe cardiac failure (BP was 18%, MR IIo, TR IIIo). His symptom was unstable, i.e., high blood pressure state improved his left limbs’ weaknesses, however low blood pressure status aggravated his paresis. Head MRI scan revealed right middle cerebral artery occlusion and diffusion-weighed image showed a high intensity area in the right insular cortex. We decided “clot removal therapy” by Merel retriever (endovascular treatment) must be effective, and treated immediately. However, the clot was tight and we could not obtain successful (total) recanalization. After these medical treatments, he was admitted in our ICU (Intensive Care Unit). On 2nd day after admission his CT scan revealed right incular cortex and partial temporal lobe infarction. He shows left upper and lower limbs’ severe motor weaknesses. His vital sign is stable, however intensive care is still required. He needs 2 or 3 weeks treatment on admission for his brain and heart. And after all, long time rehabilitation will be needed.” “Certified by Yuji Ueda MD. Date 2011/11/16 (Signature)”

Copy of the said Medical Certificate is hereto attached as Annex “E”.

7. After two weeks of confinement at the Tokuyama Central Hospital in

Japan, a Follow-up Report dated 30 November 2011 was prepared by

Dr. Yuji Ueda, MD, PhD., which stated as follows –

“To whom it may concern, “Mr. Abelardo P. Zamarro is a 52-year-old male, who had complained general fatigue and palpitation since 4:00 AM

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2011/11/15 and had a medical examination by a clinic at Shuna City (Shimizu Clinic). Shortly afterward he developed left hemiparesis and gait disturbance. He was introduced to our hospital at 11:00 AM. His ECG showed Af (atrial fibrillation) and USG showed severe cardiac failure (EF was 18%, MRoTRo). His neurological symptom was unstable i.e., high blood pressure state improved his left limbs’ motor weaknesses, however low blood pressure status aggravated his paresis. Head MRI scan revealed right middle cerebral artery occlusion and diffusion-weighed image showed a high-intensity area in the right insular cortex. We had decided “clot removal therapy” by Merci reriever (endovascular treatment) might to (sic) be effective, and treated immediately. However the clot was tight and we could not obtain successful (total) recanalization. After these medical treatments, he has admitted in our ICU (Intensive Care Unit). On 2nd day after admission his CT scan revealed right insular cortex and partial temporal lobe infarction. He showed left upper and lower limbs’ severe paresis. Then he has been transferred to a ward of internal medicine (Dr. Iwami) for treatment of heart failure. 2 weeks later, his heart condition has been much better to be back (to) his country by air, however severe left cerebral paralysis remained. We hope he will receive appropriate rehabilitation and anticoagulation drug onward. If you have any question concerning the detail of his therapy, please feel free to contact me at the email address below.” “Yours sincerely, “Yuji Ueda, MD., PhD., “ymaueda@bronze.ocn.ne.jp “Tokuyama Central Hospital Department of Neurosurgery

(Stroke Care Center) “Kohda cho 1-1, Shuna City, Yamaguchi Pref. “Japan 745-8522 “Tel. +81-834-28-4411 Fax +81-834-29-2579”

Copy of this medical history introduction form is hereto attached as

Annex “F”.

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8. Complainant Zamarro was confined in the Tokuyama Central Hospital

from 15 November 2011 until about 9 December 2011. Upon

discharge for medical repatriation and further treatment in the

Philippines, the Cardiology Department of the said hospital prepared

Introduction Form for our local doctors, containing a medical history

during complainant Zamarro’s admission and confinement Japan.

The medical history in the introduction form provided as follows –

“The following is the medical history of the patient listed above. “Mr. Zamarro Abelardo is a 52-year-old male sailor man, who consulted our hospital at 11:00 AM on November 15th because of breathless and left hemiplegia from 4:00 AM the same day. On admission, Chest X ray showed cardiac enlargement and pulmonary congestion. Electrocardiogram showed atrial fribrillation (AF). Echocardiogram showed left ventricular enlargement with severe systolic impairment (left ventricular end-diastolic dimension: 58mm, left ventricular ejection fraction: 18%), diffuse reduction of left ventricular motion and moderate to severe mitral and tricuspid insufficiency. Head MRI scan showed right middle cerebral artery occlusion with cerebral infarction. These findings let us diagnose cerebral embolism due to AF and chronic heart failure. We started to administer heparin sodium, carperitide and isosorbide dinitrate by intravenous infusion in order to maintain the good hemodynamic status during acute phase treatment of cerebral infarction by our neurosurgeon. Afterward we exchanged to oral medicine because his condition was improved.” “His medication is as below.” “Rp.

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“1) enalarpil maleate 5 mg, carvedilol 2.5 mg, isosorbide mononitrate 20 mg, famotidine 20mg, twice daily;

“2) spironolactone 25mg, azosemide 60mg, aspirin 100mg, warfarin 2mg, once daily.”

xxxx xxxx xxxx “Takihiro Iwani, MD “Division of Cardiology, “Tokuyama Central Hospital, “1-1 Koda, Shunan, Yamaguchi “745-8522, Japan

Copy of this medical history introduction form is hereto attached as

Annex “G”.

9. Complainant Zamarro was repatriated to the Philippines on 9

December 2011. He was immediately taken to the Emergency Room

(ER) of the Saint Luke’s Medical Center for treatment. The “Initial

Medical Report” dated 10 December 2012 at the Saint Luke’s Medical

Center stated as follows –

“REPORT: 1st (Emergency admission) “Patient came in from abroad last night and was taken to the emergency room. He is a diagnosed case of Stroke (Brain Attack) who was eventually admitted. Medical reports from abroad stated that he suffered stroke 3 weeks ago and was confined at a medical facility in Japan. Initial physical examinations findings revealed a conscious coherent patient, non-ambulatory with a paralyzed left upper limb and a very weak lower limb. Diagnostic procedures done in Japan showed a very weak heart. He

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was subsequently referred to a neurologist (brain specialist) and a cardiologist (heart specialist).” “Today, he was also referred to rehab specialist. Further diagnostic procedures and laboratories are scheduled today. He is closely monitored for any signs or symptoms of clinical deterioration.” “IMPRESSION/DIAGNOSIS: “STROKE “HYPERTENSIVE CARDIOVASCULAR DISEASE “VALVULAR HEART DISEASE “RECOMMENDATION/PLAN: “Further diagnostic procedures and laboratories (2D

Echo and holter monitoring) “Plan for rehab therapy “MEDICATIONS: As ordered (Signed.) “ELPIDIO C. NOLASCO, MD

Copy of this Initial Medical Report from St. Luke’s Medical Center is

hereto attached as Annex “H”.

10. Dr. Elpidio E. Nolasco of the St. Luke’s Medical Center also prepared

the 2nd, 3rd, and 4th , Medical Report until complainant Zamarro was

discharged from confinement on 20 December 2011. In the ensuing

reports, the following impressions persisted: [a]. Stroke; [b].

Hypertensive Cardiovascular Disease; [c]. Atrial Fibrillation,

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incomplete right bundle branch block (heart); [d]. Cardiomyopathy

(strongly considered); and [e]. Azotemia (impaired kidney function).

11. Upon his discharge, complainant Zamarro was to continue [a]. rehab

theraphy; and [b]. medications. Copy of the 2nd, 3rd, and 4th , Medical

Reports from the St. Luke’s Medical Center are hereto attached as

Annexes “I”, “J” and “K” respectively.

12. Upon his discharge from St. Luke’s Medical Center, complainant

Zamarro onviously remained sick as his symptoms continued. He had

to continue rehab therapy and medications. He also felt that his

discharge was premature, most likely to avoid greater costs to

respondent Alpha. Proof that respondent Alpha was actually trying to

avoid further costs was the fact that when complainant Zamarro filed

a claim for Social Security System (SSS) benefits; respondent Alpha

thru respondent Chan reported the actual medical condition of

complainant Zamarro. However, respondent Chan also stated that

respondent Alpha was not giving sickwages to complainant Zamarro

alleging that the latter was not entitled thereto, inspite of the

pertinent provisions of the IBF JSU/AMOSUP-IMMAJ CBA covering

the vessel of assignment as well as the POEA Standard Contract

concerning the payment of Sickwages.

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Copy of the Accident/Illness Report filed at the SSS consisting of two

pages is hereto attached as Annex “L” to “L-1”.

13. Not only did respondents refused payment of sickwages; they

likewise refused payment of the total and permanent disability pay of

complainant Zamarro based on the IBF JSU/AMOSUP-IMMAJ CBA

when the said complainant asked for such payment. Complainant

Zamarro knew and felt that being a half paralyzed man now, he can

never again work as a seafarer on-board international vessels. Hence,

complainant Zamarro sought a categorical statement regarding his

medical condition from a specialist in Internal Medicine and

Cardiology at Philippine Heart Center. Complainant Zamarro

consulted Dr. May S. Donato-Tan, MD, FPCP, FPCC, a specialist in

Internal Medicine and Cardiology.

14. Dr. May S. Donato-Tan’s findings, inter alia, provided as follows –

“Disability Claim:

“Based on the history, physical examination and laboratory examination, the patient suffered from HACVD, HPN Stage II, and S/P CVA Cerebral Infarct 2 degree embolism 2 degree to Atrial Fibrillation and the occurrence of Azotemia secondary to Hypertensive Atherosclerotic Cardiovascular Disease. Patient needs continuous monitoring and medications to prevent recurrence and progression of his signs and

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symptoms that triggered his CEREBRO-CARDIOVASCULAR ACCIDENT (CVA). Lifestyle modification is also advised. He is also advised to see his cardiologist and nephrologist on a regular basis to prevent recurrence of his condition, especially his CVA. HIS PERSISTENT CONDITIONS HINDER HIM FROM SUFFICIENTLY PERFORMING HIS WORK AS A SEAMAN. HE IS THEREFORE GIVEN PERMANENT DISABILITY AND DECLARED UNFIT FOR DUTY IN WHATEVER CAPACITY AS A SEAMAN.” (Capitalization supplied.)

(Signed.) “MAY S. DONATO-TAN, MD, FPCP, FPCC “Lic. No. 45904 “PTR No. 5075644

Copy of Dr. May S. Donato-Tan’s medical report is hereto attached as

Annex “M” with sub-annex “M-1”.

15. By reason of respondents refusal and failure to pay the total

permanent disability benefits of complainant Zamarro, he filed the

instant case against respondents. Attempts to arrive at a settlement

failed, hence, this Position Paper is now filed.

ISSUES TO BE RESOLVED

[a]. Whether or not complainant Zamarro is entitled to payment of

Permanent Total Disability Benefits and Sickwages under the

IBF-JSU/AMOSUP-IMAAF Collective Bargaining Agreement

(CBA); and

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[b]. Whether or not complainant Zamarro is entitled to payment of

moral and exemplary damages, and attorney’s fees.

ARGUMENTS AND DISCUSSIONS

Complainant Zamarro thru undersigned counsel respectfully submits

in the affirmative for all the issues.

Complainant Zamarro submits that being a Senior Officer, he is

entitled to be paid, among others, his total permanent disability benefits

of One Hundred Forty-Eight Thousand and Five Hundred US Dollars

[US$148,500.00] under Collective Bargaining Agreement, copy of which is

hereto attached as Annex “N”.

Complainant Zamarro is claiming total permanent disability benefits

since, as discussed above, he is incapacitated to work for more than 120

days from date of his repatriation; and continues to be unfit and

incapacitated up to present; with all factual indications pointing to remain

incapacitated for the rest of his life.

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Complainant Zamarro is entitled to [a]. Sickwages of at least 130

days basic pay; and [b]. Total Permanent Disability pay of US$148,500.00

based on the IBF-JSU/AMOSUP-IMAAF Collective Bargaining Agreement

(CBA).

Article 26 of the IBF-JSU/AMOSUP-IMAAF Collective Bargaining

Agreement (CBA) provides, inter alia, that –

“Article 26: Sick Pay xxxx xxxx xxxx “26.2 Thereafter the seafarers shall be entitled to sick pay at

the rate equivalent to their basic wage while they remain sick up to a minimum of sixty (60) days and a maximum of one hundred and thirty (130) days.“

“26.3 However, in the event of incapacity due to an accident

the basic wages shall be paid until the injured seafarer has been cured or until a medical determination is made in accordance with clause 28.2 concerning permanent disability.“

xxxx xxxx xxxx

On the other hand, Article 28 of the IBF-JSU/AMOSUP-IMAAF

Collective Bargaining Agreement (CBA) provides, inter alia, that –

“Article 28: Disability “28.1 A seafarer who suffers permanent disability as a result of

an accident whilst in the employment of the company

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regardless of fault, including accidents occurring while travelling to or from the ship, and whose ability to work as a seafarer is reduced as a result thereof, but excluding permanent disability due to willful acts, shall in addition to sickpay, be entitled to compensation according to the provisions of this agreement.”

xxxx xxxx xxxx

Appendix 3 of the IBF-JSU/AMOSUP-IMAAF Collective Bargaining

Agreement (CBA) provides that the compensation for total and permanent

disability of Senior Officers is US$148,500.00; as in the case of complainant

Zamarro who is a Second Officer.

In addition to all factual indications pointing that complainant

Zamarro will remain incapacitated for the rest of his life, the disability of

complainant Zamarro is total and permanent on account of the application

of law and jurisprudence to such factual indications as hereinafter

discussed further.

The latest word of the Supreme Court on this matter is the case of

MAGSAYSAY MARITIME CORPORATION, ET. AL., v. OBERTO S. LOBUSTA,

(25 January 2012, G.R. No. 177578). In that case, the Supreme Court re-

affirmed its previous rulings concerning the determination of total and

permanent disability, to wit –

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“Petitioners are mistaken that it is only the POEA Standard Employment Contract that must be considered in determining Lobusta's disability. In Palisoc v. Easways Marine, Inc.,25 we said that whether the Labor Code’s provision on permanent total disability applies to seafarers is already a settled matter. In Palisoc, we cited the earlier case of Remigio v. National Labor Relations Commission26 where we said (1) that the standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under Executive Order No. 24727 “to secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith,” and “to promote and protect the well-being of Filipino workers overseas”; (2) that Section 29 of the 1996 POEA Standard Employment Contract itself provides that all rights and obligations of the parties to the contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory; and (3) that even without this provision, a contract of labor is so impressed with public interest that the Civil Code expressly subjects it to the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects.”28

“In affirming the Labor Code concept of permanent total

disability, Remigio further stated:”

“Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers. In Philippine Transmarine Carriers v. NLRC, seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by the company-accredited physician. The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC that “disability should not be understood more on its medical significance but on the loss of earning capacity. Permanent total disability means disablement of an employee to earn wages in the same kind of work, or 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 attainment could do. It does not mean absolute helplessness.” It likewise cited Bejerano v. ECC, that in disability compensation, it is not the injury which is

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compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.”

“The same principles were cited in the more recent case of Crystal Shipping, Inc. v. Natividad. In addition, the Court cited GSIS v. Cadiz and Ijares v. CA that “permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body.”

x x x x

“These facts clearly prove that petitioner was unfit to work as drummer for at least 11-13 months – from the onset of his ailment on March 16, 1998 to 8-10 months after June 25, 1998. This, by itself, already constitutes permanent total disability.” x x x29

“In Vergara v. Hammonia Maritime Services, Inc., we also said that the standard terms of the POEA Standard Employment Contract agreed upon are intended to be read and understood in accordance with Philippine laws, particularly, Articles 191 to 193 of the Labor Code, as amended, and the applicable implementing rules and regulations in case of any dispute, claim or grievance.

“Thus, the CA was correct in applying the Labor Code provisions in Lobusta’s claim for disability benefits. The Labor Arbiter erred in failing to apply them.

“Article 192(c)(1) under Title II, Book IV of the Labor Code, as amended, reads:

“ART. 192. Permanent total disability. – x x x

x x x x

(c) The following disabilities shall be deemed total and permanent:

(1) Temporary total disability lasting continuously for more than one hundred twenty (120) days, except as otherwise provided in the Rules;

x x x x

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“Section 2(b), Rule VII of the Implementing Rules of Title II, Book IV of the Labor Code, as amended, or the Amended Rules on Employees’ Compensation Commission (ECC Rules), reads:

Sec. 2. Disability. – x x x

(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X of these Rules.”

Complainant Zamarro’s claim is likewise in accord with the doctrinal

rulings in Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R. No.

154798, 20 October 2005] and Bernardo Remigio v. NLRC, Et Al., [G.R. No.

159887, 12 April 2006], as well as subsequent jurisprudence maintaining

the said rulings.

In this case, the accident (Cerebro-Cardiovascular Accident [CVA] or

Stroke) was work-related since the same was sustained in the course of

duty. The resulting illnesses were not pre-existing since complainant

underwent the mandatory pre-employment medical examination before he

was employed by respondent, and was found to be fit and given a clean

bill of health prior to his employment.

There is an accident because the occurrence of the stroke was sudden

and unforeseen. It instantaneously happened in the course of the voyage.

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It was a streak of light abruptly disrupting the normal events on the life of

complainant Zamarro while working on the vessel.

In Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R. No. 154798,

20 October 2005], the Supreme Court ruled that:

“Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body. 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. 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.”

The ruling in the Crystal Shipping Case is a refinement of earlier

decisions, viz –

“In the case of the Philippine Transmarine Carriers, Inc. vs. NLRC. 358 SCRA 47, the Supreme Court held that disability should not be understood more on its medical significance but on the loss of earning capacity. Permanent total disability means disablement of an employee to earn wages in the same kind of work, or work of similar nature that he was trained for or accustomed to perform, or any kind of work which

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person of his mentality and attainment could do. It does not mean absolute helplessness (ECC vs. Edmund Sanico, 321 SCRA 268: GSIS vs. CA 285 SCRA 430; GSIS vs. CA 260 SCRA 133: Bejerano vs. ECC, 205 SCRA 598).” 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 (Bejerano vs. ECC 205 SCRA 598: Ulibas vs. Republic, 83 SCRA 819; Roma vs. WCC, 80 SCRA 170). One should always remember that the POEA Standard Employment Contract for Seamen is designed primarily for the protection and benefit of Filipino seamen in the pursuit of their employment on board ocean-going vessels. Its provisions must, therefore, be construed and applied fairly, reasonably and liberally in their favor. Only then can its beneficent provisions be fully carried into effect (Wallem Maritime Services, Inc. vs. NLRC 318 SCRA 632).

The ruling in the Crystal Shipping case was maintained, reinforced

and more clearly expounded in the case of Bernardo Remigio v. NLRC, Et

Al., [G.R. No. 159887, 12 April 2006] when this Honorable Court, acting

through then Associate Justice [later on Chief Justice] Renato Puno,

included the application of the concept of Permanent Total Disability

under the Labor Code in favor of the sick or injured seafarer in addition to

the provisions of the POEA Standard Employment Contract for seafarers.

The ruling in the said case reads as follows:

“Second. Is the Labor Code's concept of permanent total disability applicable to the case at bar? Petitioner claims to have suffered from permanent total disability

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as defined under Article 192(c)(1) of the Labor Code, viz: “Art. 192 (c) The following disabilities shall be deemed total and permanent: “(1) Temporary total disability lasting continuously for more than one hundred twenty days, except as otherwise provided in the Rules; x x x “Petitioner likewise cites Vicente v. ECC1[35] and Abaya, Jr. v. ECC,2[36] both of which were decided applying the Labor Code provisions on disability benefits. Private respondents, on the other hand, contend that petitioner erred in applying the definition of ‘permanent total disability’ under the Labor Code and cases decided under the ECC as the instant case involves a contractual claim under the 1996 POEA SEC. “Again, we rule for petitioner. “The standard employment contract for seafarers was formulated by the POEA pursuant to its mandate under E.O. No. 247 to ‘secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith’ and to ‘promote and protect the well-being of Filipino workers overseas.’3[37] Section 29 of the 1996 POEA SEC itself provides that ‘[a]all rights and obligations of the parties to [the] Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory.’ Even without this provision, a contract of labor is so impressed with public interest that the New Civil Code expressly subjects it to ‘the special laws on labor unions, collective bargaining, strikes and lockouts, closed shop, wages, working conditions, hours of labor and similar subjects’."4[38] “Thus, the Court has applied the Labor Code concept of permanent total disability to the case of seafarers. In Philippine Transmarine Carriers v. NLRC,5[39] seaman Carlos Nietes was found to be suffering from congestive heart failure and cardiomyopathy and was declared as unfit to work by the company-accredited

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physician. The Court affirmed the award of disability benefits to the seaman, citing ECC v. Sanico,6[40] GSIS v. CA,7[41] and Bejerano v. ECC8[42] that ‘disability should not be understood more on its medical significance but on the loss of earning capacity. Permanent total disability means disablement of an employee to earn wages in the same kind of work, or 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 attainment could do. It does not mean absolute helplessness.’ It likewise cited Bejerano v. ECC,9[43] that 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.

Complainant Zamarro is also entitled to moral and exemplary

damages, and attorney’s fees.

On account of respondents’ stone refusal to pay complainant what is

clearly due to him, which act manifests evident bad faith on their part,

respondents must likewise be ordered to pay moral damages in favor of

complainant Zamarro who, in addition to his sickness, also suffered serious

anxiety, sleepless nights, wounded feelings and loss of appetite. Such

moral damages must amount to at Five Hundred Thousand Pesos

[Php500,000.00] Philippine currency.

In order to serve as a lesson to the general public and prevent further

commission of the same or similar acts injurious to complainant,

respondents must likewise be ordered to pay exemplary damages of at

least Five Hundred Thousand Pesos [Php500,000.00] Philippine currency.

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Since it was respondents’ act of refusing to pay complainant’s

disability benefits which forced the latter to litigate, respondents must

likewise be ordered to pay attorney’s fees equivalent to ten percent [10%]

of the total award in favor of complainant Zamarro.

R E L I E F

WHEREFORE, premises considered, it is respectfully asked of this

Honorable Labor Arbitration Office that the following be awarded in favor

of complainant by ordering respondents to pay -

1. TP Disability Benefits = US$ 148,500.00 US Dollars 2. Moral damages = PhP 500,000.00 PH. Pesos 3. Exemplary damages = PhP 500,000.00 PH. Pesos 4. Sickwages (130 days basic) = US$ 4,056.00 US Dollars 5. Attorney’s Fees equivalent to 10% of total award

= US$ 14,850.00 US Dollars; and = PhP 100,000 PH. Pesos = PhP 405.80 US Dollars

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.

Santa Cruz, Laguna for Quezon City, ____________________ 2012.

Atty. EMMANUEL E. SANDICHO Counsel for the Complainant 117 P. Guevarra St., Santa Cruz, Laguna IBP No. 848920, 01.06.2012, Manila-IV PTR No. 8163771, 02.05.2012, Laguna Roll No. 42246 admitted on 9 May 1997 MCLE Compliance No. III-0020564

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Republic of the Philippines ] Quezon City, Metro Manila ] sis.

VERIFICATION & CERTIFICATION

I, ABELARDO P. ZAMARRO, of legal age, Filipino, married and resident of Purok 6 Asiongan, Langkaan-1, Dasmariñas City, Cavite, after having been sworn in accordance with law, depose and state that – I am the complainant in the above captioned case; I have caused

the preparation and filing of the foregoing Position Paper; I have read and understood the same; I certify that the declarations therein are true and correct of my own personal knowledge and on the basis of authentic records.

I have not commenced any action or proceeding involving the same issues before any other court, agency or tribunal. To my personal knowledge, no such action or proceeding is pending before any other court, agency or tribunal. In the event I come to know of any other pending action to that effect, I undertake to inform this office within five [5] days thereafter.

IN WITNESS WHEREFORE, I hereto affixed my signature this _______________ 2012 in Quezon City.

ABELARDO P. ZAMARRO Affiant

SUBSCRIBED AND SWORN to before me this 27 April 2012 in Quezon

City by affiant with Seaman’s Book No. B0658302 issued at Manila on 16 Jan. 2009 and valid until 15 Jan. 2014. Doc. No. _____; Page No. _____; Book No. _____; Series of 2012.

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________________________________________________ Copy furnished -- DEL ROSARIO & DEL ROSARIO LAW 15TH Floor Pacific Star Building Corner Makati and Gil Puyat Avenues Makati City, Metro Manila Received by: Signature : _________________ Name : _________________ Position : _________________ Date : ________________