reply zabate

8/10/2019 Reply Zabate

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Republic of the Philippines

Department of Labor and EmploymentN ATIONAL LABOR RELATIONS COM MISSION

Quezon City

NATIONAL CAPITAL REGION

ARBITRATION BRANCH

OFW-SEA BASED

NLRC Case No. (M) NCR-03-05007-12

Hon. Labor Arbiter Lilia S. Savarri

CONCEPCION S. ZABATE (on behalf

of her deceased husband NARCISO G.

ZABATE),

Complainant,

-versus-

DOLPHIN SHIP MANAGEMENT, INC.,

UNITED OCEAN SHIP MANAGEMENT

PTE, LTD., and DANTE C. MORALDE,

Respondents,

x-----------------------------------------------x

COMPLAINANTS REPLY

COMPLAINANT Concepcion S. Zabate (on behalf of her deceased

husband Narciso G. Zabate) through undersigned counsel, respectfully

submits this Reply to respondents Position Paper, viz

1. In their Position Paper, respondents admitted in ter a l iathe following

facts which are material to the claims of the complainant, to wit:


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vein in his right side testicle. Excision of the tumor (cyst

removal) was urgently recommended within one day by

Dr. Wu Tsuy Yuan due to severe pain experienced by Mr.

Zabate;

d]. Mr. Zabate was repatriated to the Philippines on 12 April

2011, (more than two [2] weeks after he was seen at the

medical clinic in Kaohsiung, Taiwan_. Shortly after his

arrival in the Philippines on 13 April 2011, he was

examined at the Metropolitan Medical Center Marine

Medical Services, the company designated hospital. Mr.

Zabate was diagnosed as follows:

RIGHT VARICOCOELE; RIGHT EPIDIDYMAL CYST;

LEFT MILD VARICOCOELE;

S/P BILATERAL VARICOCOELECTOMY, RIGHT

(See page 4 of respondents Position Paper);

e]. On 19 April 2011, Mr. Zabate underwent surgical

operation. (See Page 4 of respondents Position Paper).

(This confirms complainants statement that on that day,

the scrotal tumor in Mr. Zabates crotch was finally

extracted. The specimen that was taken from him consists

of a grayish brown tissue 2.2x1.7x0.5 cm in size. The


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diagnosis was CONSISTENT WITH EPIDIDYMAL CYSTS /

SPERMATOCOELE (RIGHT). [Copy of the Pathology Report

was attached as Annex I in complainants Position

Paper].

f]. United Ocean Ship Management Pte Ltd. (respondent

UOSM) is a member of the Singapore Maritime Employers

Federation (SMEF) as well as the International Maritime

Employers Committee (IMEC) which concluded collective

bargaining agreements (CBAs) with Mr. Zabates vessel

union (ITF-SMOU/SOS). Respondent UOSM is the principal

of Dolphin Ship Management, Inc., (respondent Dolphin),

the Philippine manning agency.

2. The clear and logical implications of the foregoing factual admissions

(which by the way are undeniable under circumstances) are as

follows: [a]. Mr. Narciso Zabate was fit for duty and in sound healthy

condition at the beginning of his employment engagement by

respondents; [b]. Mr. Zabates illnesses and medical problems

occurred during his employment on-board the vessel of respondents,

MV Ocean Alliance; [c]. Mr. Zabate was seen, operated-on and treated

by company designated physicians and his illnesses and medical


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conditions (Right Varicocoele; Right Epididymal Cyst; Left Mild

Varicocoele; Epididymal Cysts/Spermatocoele; S/P Bilateral

Varicocoelectomy, Right) were all confirmed; and [d]. Respondents,

being members and affiliates of the Singapore Maritime Employers

Federation (SMEF) as well as the International Maritime Employers

Committee (IMEC) which concluded collective bargaining agreements

(CBAs) with Mr. Zabates vessel union (ITF-SMOU/SOS), the Collective

Bargaining Agreement (ITF-SMOU/SOS-SMEF TCC FOREIGN FLAG

VESSELS SEAFARERS AGREEMENT) is relevant and applicable under

the circumstances.

3. Thence, in an effort to argue against the claim for payment of total

permanent disability benefits of Mr. Narciso Zabate, respondents

alleged only two (2) arguments. These two (2) arguments were as

follows:

a].

Mr. Zabate was allegedly declared fit for duty by the

company designated physician on 21 June 2011;

b].

Mr. Zabates illnesses and medical conditions [Varicocoele,

among others and not just Varicocoele] were allegedly not

work-related.


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4. Complainant thru undersigned counsel respectfully submits that

respondents arguments are spacious, hardly belaboring,

unsubstantiated, evasive of the real facts and the applicable legal

precepts, hence misleading.

THE DECLARATION OF THE COMPANY DESIGNATED

PHYSICIAN REGARDING THE FITNESS / UNFITNESS

OF COMPLAINANT IS NOT CONCLUSIVE OR BINDING.

IT CAN BE REVIEWED. IT CAN BE REPUDIATED BY

EVIDENCE OF FACTS THAT PROVE OTHERWISE.

5. In their Position Paper, respondents wanted to make us believe that

complainants late husband, Mr. Narciso Zabate is not entitled to

payment of total permanent disability benefits as he was allegedly

declared fit to work by the company appointed physician.

Complainant vehemently but respectfully disagrees. First, relevant

jurisprudence as hereinafter discussed, taught us how to treat a

declaration given by a company designated physician in relation to

the actual facts as well as the findings of the seafarers own physician.

Second, complainant Zabates amount of claim for total permanent

disability benefit is covered by the Collective Bargaining Agreement

(ITF-SMOU/SOS-SMEF TCC FOREIGN FLAG VESSELS SEAFARERS

AGREEMENT).


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6. In a line of cases, the Supreme Court consistently held that the

findings, impediment grading or declaration of fitness by the

company designated physician are not absolute. In the case of

WALLEM MARITIME SERVICES, INC., ET. AL., VS. NLRC AND TIBURCIO

DELA CRUZ (G.R. No. 163838, 25 Sept. 2008), the Supreme Court

sternly held that

Under Section 20-B(3) of the POEA-SEC, it is a

requirement sine qua non to the filing of a claim for disability

benefit that the claimant seafarer be examined by a

company-designated physician within three days from his

repatriation. But whatever medical report said company-

designated physician may issue will not be conclusive on the

claimant

, for the latter may dispute said report by promptly

consulting a physician of his own choice. However, neither

the medical report issued by the company-designated

physician nor the medical report issued by claimant's

physician of choice is binding on the labor tribunals and the

courts, for both reports will have to be evaluated based on

their inherent merit.1[35]

In a number of cases, the Court disregarded the

medical report issued by the company-designated physician

1[35] Maunlad Transport, Inc. v. Manigo Jr., G.R. No. 161416, June 13, 2008, citing Crystal Shipping, Inc. v. Natividad, supra note 30,

Philippine Transmarine Carriers, Inc. v. National Labor Relations Commission, G.R. No. 156573, June 19, 2007, 525 SCRA 42

and Cadornigara v. National Labor Relations Commission, G.R. No. 158073, November 23, 2007, 538 SCRA 363.


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that the seafarer was fit to work in view of evidence of record

that the latter had in fact been unable to engage in his

regular work for more than 120 days.2[36]

7. Among the latest decisions on this matter is FIL-STAR MARITIME

CORPORATION, ET. AL., v. HANZIEL O. ROSETE, (G.R. No. 192686,

November 23, 2011). In that case, the Supreme Court held

Now, the Court shall determine whether

respondent is entitled to be awarded permanent total or

permanent partial disability benefits.

It should be noted that the company-designated

physician assessed the loss of respondents left eye as a

permanent partial disability while respondents own

physician indicated his disability as Grade 7.

The Court is more inclined to rule, however, that

respondent is suffering from a permanent total disability as

he was unable to return to his job that he was trained to do

for more than one hundred twenty days already. The recent

case of Valenzona v. Fair Shipping Corporation, et

al .,[31]citing Quitoriano v. Jebsens Maritime,

Inc.,[32]elucidated the concept of permanent total disability,

in this wise:

Thus, Court has applied the Labor Code

concept of permanent total disability to the case of

seafarers. x x x

x x x x

There are three kinds of disability benefitsunder the Labor Code, as amended by P.D. No. 626:

(1) temporary total disability, (2) permanent total

disability, and (3) permanent partial disability.

Section 2, Rule VII of the Implementing Rules of Book

2[36] Palisoc v. Easways Marine, Inc.,G.R. No. 152273, September 11, 2007, 532 SCRA 585;Philimare, Inc. v. Suganob


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V of the Labor Code differentiates the disabilities as

follows:

Sec. 2. Disabil ity.- (a) A total disability is

temporary if as a result of the injury or sickness the

employee is unable to perform any gainfuloccupation for a continuous period not exceeding

120 days, except as otherwise provided for in Rule X

of these Rules.

(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 exceeding120 days, except as otherwise provided for in

Rule X of these Rules.

(c) A disability is partial and permanent if

as a result of the injury or sickness the

employee suffers a permanent partial loss of

the use of any part of his body.

In Vicente v. ECC (G.R. No. 85024,

January 23, 1991, 193 SCRA 190, 195):

x x x the test of whether or not an employee

suffers from 'permanent total disability' is a

showing of the capacity of the employee to

continue performing his work notwithstanding

the disability he incurred. Thus, if by reason of

the injury or sickness he sustained, the

employee is unable to perform his customary

job for more than 120 days and he does not

come within the coverage of Rule X of the

Amended Rules on Employees Compensability

(which, in more detailed manner, describes

what constitutes temporary total disability),

then the said employee undoubtedly suffersfrom 'permanent total disability' regardless of

whether or not he loses the use of any part of

his body.


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A total disability does not require that

the employee be absolutely disabled or totally

paralyzed. What is necessary is that the injury

must be such that the employee cannot pursue

his usual work and earn therefrom (Austria v.

Court of Appeals, G.R. No. 146636, Aug. 12,2002, 387 SCRA 216, 221). On the other hand, a

total disability is considered permanent if it

lasts continuously for more than 120 days.

Thus, in the very recent case of Crystal

Shipping, Inc. v. Natividad (G.R. No. 134028,

December 17, 1999, 321 SCRA 268, 270-271),

we held:

Permanent disability is inability of a

worker to perform his job for more than 120

days, regardless of whether or not he lose[s]

the use of any part of his body. x x x

Total disability, on the other hand,

means the disablement of an employee to earn

wages in the same kind of work of similarnature 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.[33][Emphasis and

underscoring supplied]

A total disability does not require that the

employee be completely disabled, or totally

paralyzed. What is necessary is that the

injury must be such that the employee

cannot pursue his or her usual work and

earn from it.[34] On the other hand, a total

disability is considered permanent if it lastscontinuously for more than 120 days.[35]

________________________________________________________________________[32]

G.R. No. 179868, January 21, 2010, 610 SCRA 529.[33]

Id. at 534-536.[34]

Austria v. CA, 435 Phil. 926, 932 [2002], citing Gonzaga v. ECC, 212 Phil. 405, 414 [1984].[35]

Rule XI, Section 1(b) of the Amended Rules on Employees Compensation.


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What is crucial is whether the employee who suffers from

disability could still perform his work notwithstanding the

disability he incurred. Evidently, respondent was not able to

return to his job as a seafarer after his left eye was declaredlegally blind. Records show that the petitioners did not give

him a new overseas assignment after his disability. This

only shows that his disability effectively barred his chances

to be deployed abroad as an officer of an ocean-going

vessel.

Therefore, it is fitting that respondent be entitled

to permanent total disability benefits considering thathe would not able to resume his position as a maritime

officer and the probability that he would be hired by

other maritime employers would be close to

impossible. Indeed, a sight-impaired maritime applicant

cannot stand in the same footing as his healthy co-

applicant. (Boldface supplied for emphasis.)

8. It is therefore clear that the declaration of fitness of Narciso Zabate

by the company designated physician is not absolutely acceptable in

the light of the above rulings, in relation to the actual facts of the

instant case attendant to the condition of Mr. Zabate; which facts are

discussed in complainants Position Paper. For clarity, complainant

submitted sufficient and substantial evidence of relevant facts to

support Mr. Zabates entitlement to total and permanent disability

benefits. In pages 4, 5, 11 up to 15 the following material facts and

the evidence in support thereof were discussed, to wit:

Based on a report by the Master of MV Ocean

Alliance, on 09 February 2011, the vessel was on its


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way to Maputo, Mozambique for loading of

cargoes. Mr. Zabate helped the crew in the

cleaning, scraping and lifting of rust and residues

in one of the cargo holds. Sometime thereafter,

Mr. Zabate began complaining of pain on his right

side testicle. In a period of one month therefrom,the pain progressively intensified. Copy of the

Masters Report in the form of e-mail (Capt.

Perells Request for Medication) is hereto attached

as Annex D. Copy of Reply to the said e-mail

from respondent UOSMs Singapore office and

subsequent exchanges of communication from

respondent Dolphin (in Manila) and respondent

UOSMs India office are hereto attached asAnnexes D-1 to D-4. These communications

were noted and counter-signed by Chief Officer

Zabate himself, 2ndOfficer Batucan and 3rdOfficer

Navarro.

On 25 March 2011, about one and a half months

from the time the testicle pains began in

Mozambique, medical attention was given inKaohsiung, Taiwan. The presence of a Scrotum

Tumor was immediately detected by the Doctor in

Taiwan. Excision of the tumor (cyst removal) was

urgently recommended within one day by Dr. Wu

Tsuy Yuan due to severe pain experienced by Mr.

Zabate. The scrotal tumor developed with the

occurrence of a varicose vein in the right side

testicle of Mr. Zabate. Copy of UOSM Form 008.00

which contains the Doctors Report and Account is

hereto attached as Annex E with sub-annexes E-

1 to E-2.

Mr. Zabate was repatriated to the Philippines on

12 April 2011, more than two (2) weeks after he

was seen at the medical clinic in Kaohsiung,

Taiwan. Shortly after his arrival in the Philippines

on 13 April 2011, he was examined at the

Metropolitan Medical Center Marine Medical

Services, the company designated hospital. Mr.

Zabate was diagnosed as follows:


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RIGHT VARICOCOELE; RIGHT EPIDIDYMAL

CYST; LEFT MILD VARICOCOELE; S/P

BILATERAL VARICOCOELECTOMY, RIGHT

Copies of medical certificates dated 21 April 2011;

dated 06 May 2011 and Brief Clinical History dated06 May 2011, all issued by Metropolitan Medical

Center Marine Medical Services, are hereto

attached as Annexes F, G and H respectively.

On 19 April 2011, Mr. Zabate underwent surgical

operation. The scrotal tumor in his crotch was

finally extracted. The specimen that was taken

from him consists of a grayish brown tissue2.2x1.7x0.5 cm in size. The diagnosis was

CONSISTENT WITH EPIDIDYMAL CYSTS /

SPERMATOCOELE (RIGHT). Copy of the Pathology

Report is hereto attached as Annex I.

BASIS FOR THE CLAIM IN FAVOR OF

COMPLAINANT ZABATE FOR THE PAYMENT OF

TOTAL AND PERMANENT DISABILITY BENEFITS

Mr. Zabate has been sick since 09 February 2011

on-board the vessel MV Ocean Alliance where he

was then working. On 25 March 2011, he was

medically examined in Kaohsiung, Taiwan where

the Varicocoele and the Scrotal Tumor were

initially detected. He was repatriated to the

Philippines for medical reasons on 12 April 2011.

From the time the illness was contracted until

February 2012, a period of twelve (12) months or

365 days elapsed. From the date of Mr. Zabates

initial medical examination in Taiwan until

February 2012, eleven (11) months or

approximately 333 days elapsed. From the time of

Mr. Zabates repatriation on 12 April 2011 untilFebruary 2012, ten (10) months or approximately

305 days elapsed. All those times until his untimely

death sometime on March 2011, Mr. Zabate had

been unable to work for being sick with

Varicocoele which he contracted while in the vessel

under the employ of Dolphin and UOSM.


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Therefore, before Mr. Zabate died he was already

entitled to Total and Permanent Disability benefits.

It has been consistently held and affirmed in

numerous cases that a seafarer (or any other

worker for that matter) who has been unable towork for a period of at least 120 days as a result of

an illness or injury contracted in the course of

duty, is considered as totally and permanently

unfit; hence entitled to total and permanent

disability benefits.

In the definitive case of CRYSTAL SHIPPING, INC.

ET AL., v. DEO P. NATIVIDAD, [G.R. No. 154798, 20October 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 ones earning capacity.

The latest word of the Supreme Court on the

matter is the 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


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concerning the determination of total and

permanent disability, to wit

Petitioners are mistaken that it is only the

POEA Standard Employment Contract that

must be considered in determining Lobustasdisability. In Palisoc v. Easways Marine,

Inc., we said that whether the Labour

Codes provision on permanent total disability

applies to seafarers is already a settled matter.

In Palisoc, we cited the earlier case of Remigio

v. National Labour Relations

Commissionwhere we said (1) that the

standard employment contract for seafarerswas formulated by the POEA pursuant to its

mandate under Executive Order 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; (2) that Section 29

of the 1996 POEA Standard EmploymentContract 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 labour is so impressed

with public interest that the Civil

Code expressly subjects it to the special laws

on labour unions, collective bargaining,

strikes and lockouts, closed shop, wages,

working conditions, hours of labour and

similar subjects.

In affirming the Labour Code concept of

permanent total disability, Remigiofurtherstated:

Thus, the Court has applied the Labour Code

concept of permanent total disability to the

case of seafarers. In Phi l ippi ne Transmarine


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Car ri ers 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 . ECCthat

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 workwhich a person of [his] mentality and

attainment could do. It does not mean

absolute helplessness. It likewise

cited Bejerano v. ECC, that in a disability

compensation, it is not the injury which is

compensated, but rather it is the incapacity to

work resulting in the impairment of ones

earning capacity.

The same principles were cited in the more

recent case of Crystal Shipping, Inc. v.

Nat iv idad. In addition, the Court cited GSIS v.

Cadizand Ijares v. CA that permanent

disabi l i ty is the inabi l i ty of a worker to

perform his job for more than 120 days,

regard less of whether or not he loses th e use

of any part of his body.

x x x x

In Vergara v. Hammonia Marit ime Services,

Inc., we also said that the standard terms of the

POEA Standard Employment Contract agreed upon

are intended to be read and understood inaccordance with Philippine laws, particularly,

Articles 191 to 193 of the Labour Code, as

amended, and the applicable implementing rules

and regulations in case of any dispute, claim or

grievance.


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Thus, the CA was correct in applying

the Labor Code provisions in Lobustas claim

for disability benefits. The Labour Arbiter

erred in failing to apply them.

Article 192(c)(1) under Title II, Book IV of

the Labour Code, as amended, reads:

ART. 192. Perm anent tot al disabi l i t y. x x x

x x x

(c) The following disabilities shall be deemedtotal 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

Section 2(b), Rule VII of the Implementing

Rules of Title II, Book IV of the Labour Code,

as amended, or the Amended Rules on

Employees Compensation Commission (ECC

Rules), reads:

Sec. 2. Disabi l i ty. 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.

xxxx xxxxx

BASIS FOR THE AMOUNT OF THE CLAIM

Being a Senior Officer Mr. Zabate, as now

represented by his surviving wife (Mrs. Concepcion

Zabate), is entitled to One Hundred Forty-Eight


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Thousand and Five Hundred U.S. Dollars

(US$148,500.00). The basis is the paragraph

pertaining to total permanent disability benefits

(100%) of the ITF-SMOU/SOS-SMEF TCC FOREIGN

FLAG VESSELS SEAFARERS AGREEMENT which has

been consistently upgraded. The ITF-SMOU/SOS-SMEF TCC was effective until 2011 when Mr.

Zabate contracted the ailment and remained unfit.

On 2012 another agreement with the IMEC

(instead of the SMEF) now representing the SMOU

was put into place. We are sure Dolphin and SMOU

and their P&I correspondents are more than fully

aware of these matters.

The claimant Mrs. Concepcion Zabate on behalf of

the now deceased Mr. Narciso G. Zabate, therefore

asks for payment, inter alia, of One Hundred Forty-

Eight Thousand and Five Hundred U.S. Dollars

(US$148,500.00) representing the total and

permanent disability benefits of Mr. Zabate of

which he was already entitled to, prior to his

untimely death.

9. If we are to believe and accept respondents over-riding posture that

the company-designated physicians declaration is absolute, then the

quasi-judicial powers of this Honorable Labor Arbitration Office

would be rendered useless and of no effect by reason of a doctors

single stroke of his pen. If that is the case, then litigation would be an

exercise in futility. For if such a shallow and blind reasoning is true,

then there would be no need for submission, reception and evaluation

of evidence in relation to the claim of herein complainant. Of course,

that is not the case. The Supreme Court has spoken repeatedly. The

findings of the company physician are not absolute.


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THE ILLNESSES AND MEDICAL CONDITIONS

OF NARCISO ZABATE ARE SUSTAINED IN

COURSE OF EMPLOYMENT AND WORK-

RELATED, UNDENIABLY ON THE BASIS OF

THE FACTS IN RELATION TO THE EVIDENCE

AS WELL AS THE APPLICABLE MARITIMELEGAL PRECEPTS.

10. Based on the report of Capt. Perell, the master of MV Ocean Alliance

himself, Mr. Zabate began experiencing pains on the scrotum while

on duty on-board the vessel. He was helping the crew in the scraping,

cleaning, lifting of rusts and residues, in one of the cargo-holds and

while the vessel was in the waters of Maputo, Mozambique. It is

therefore indisputable that the medical disorder of Mr. Zabate was

contracted in the course of duty and that the occurrence thereof has a

reasonable causal connection with the working conditions present at

the time of contracting such medical illness. I t is of w ide know ledge

and experi ence that th e cl i m at e t emperat ure in t he coasta l areas of

Mozambique was hot and humid and at t imes intolerable. The

development of varicocoele is medically associated with poor sperm

quality brought about by high testicular temperature. Moreover, the

cargo hold is also usually a hot, humid area when a vessel travels in

tropical or hot countries such as coastal Mozambique.

11. Varicocoele has been reported in medical journals and websites as an

abnormal enlargement of veins around the testicles. In Mr. Zabates


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case, the varicocoele gave rise to the occurrence of a scrotal tumor

which exacerbated the pains that he experienced. The following

researches which appears on almost all other medical websites

confirm the foregoing connection, thus

Varicocoele

This is really the only scrotal swelling which does not fit the

rule of can you get above it? Varicocoele is much more

common on the left side. On this side the testicular veindrains into the renal vein whereas on the right it goes

straight into the vena cava. For reasons unknown, the one-

way valves stopping reflux are more likely to become

incompetent on the left. There is an association between the

condition and poor sperm quality, presum ably l ink ed to

abnormal ly high test icular temperature. Varicocoeles are

very common, and seem to occur more often where there is

a family history of varicose veins. Although a varicocoelemay present in later life in association with a renal tumor

this is rare.

(Source: www .london-urology.co.uk/ scrotal%20problem s.htm

)

12. The following contain information on the hot, humid and sometimes

intolerable climate conditions in coastal Mozambique; which is

associated with the development of poor sperm quality and leading

to the development of the medical disorder known as Varicocoele.

Varicocoele is the English spelling of the word, and Varicocele is the

American spelling of the word. Both these spellings refer to the same

condition.


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Though temperatures and rainfall formulas vary greatly

between the regions and areas of the

country. Mozambiques north-eastern coast happens to be

the hottest and most humid in the country. xxxx xxxx

Clim at e along t he coastal regions can be hot an d hum id

that is int olerabl e at t im es, while inland areas experiencethe cooler nights which is life a relief after the heat of the

day.

(Source:

ht tp : / /www.mapsofwor ld .com/mozambique/geography-

and-h istory/c l imate.html)

13. Mr. Zabates state of total permanent disability prior to his untimely

death, is logically and solely connected to the above-described

incidences which happened while he was in the performance of duties

assigned to him on-board the vessel M/V Ocean Alliance. Based on

the chain of events which led to his disabled state, Zabates

predicament has a direct causal connection with the incidents on-

board; and the sustained effects acquired in the course of duty while

he was on-board the vessel. There is no other logical conclusion. The

medical results do not point to any other cause.

14. It must be understood that it is not necessary that the seafarers

employment be the primary (or sole) cause of the disability. It is

sufficient that his employment contributed, even in a small degree to

the development of his illness (Seagull Shipmanagement and

Transpor t , Inc., vs. NLRC, 333 SCRA 236). Moreover, the yardstick in


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employees compensation is probability and not certainty (GSIS vs.

Val enciano, G.R. No. 168821, Ap ri l 10, 2006).

15. Finally, paragraph 4 of Section 20 (B) of the POEA Standard Contract

provides that Those il ln esses not li sted i n Secti on 32 of th is Cont ract

are disputably presumed as work related. In the instant case,

respondents belabored so much its painstaking argument that Mr.

Zabates illnesses are not work-related by claiming that Varicocoele is

not listed under Section 32. However, respondents also failed that

show overthrow the presumption that Mr. Zabates illness is work

related.

16. For one, the illness was sustained in the course of employment.

Another and more militating against the arguments of respondents,

respondents did not submit any expert proof or study that Mr.

Zabates illness could not have been sustained in the line of duty or in

relation to the performance of his work. And third, respondents

admitted in page 12 of their Position Paper that Item No. 10 of

Section 32-A includes Varicocoele as among the occupational diseases

listed by the POEA Standard Contract for Seafarers. The e-mail report

of the Master of MV Ocean Alliance himself, a non-Filipino and


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unrelated to Mr. Zabate, indicated the strenuous, stressful and tough

assignments and conditions performed by Mr. Zabate.

17. The statements in the Position of Paper of the complainant Zabate

are hereby respectfully restated and repleaded in so far as they are

pertinent and relevant to prove the rest of the claims of complainant

Zabate and refute the allegations in respondents Position Paper.

Complainant Zabate respectfully maintains her position that in

addition to total permanent disability benefits, her late husband is

likewise entitled to moral and exemplary damages, and attorneys

fees as previously discussed in his Position Paper.

18. Copy of Mr. Narciso Zabates death certificate and marriage contract

are hereto attached as Annexes A-Reply and B-Reply respectively;

to prove Mr. Zabates death after he became entitled to the instant

claims hereto set forth, and to establish the fact herein complainant

Concepcion Zabate, is the surviving spouse of Mr. Narciso Zabate.

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 Zabate by ordering respondents to pay


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1. TP Disability Benefits = US$ 148,500.00 Dollars

2. Moral damages = PhP 500,000.00 Pesos

3. Exemplary damages = PhP 500,000.00 Pesos

4. Attorneys Fees equivalent to 10% of total award

= US$ 14,850.00 Dollars; and

= PhP 100,000 Pesos

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.

Santa Cruz, Laguna for Quezon City, 26 July 2012.

Atty. EMMANUEL E. SANDICHO

Counsel for the Complainant

117 P. Guevarra St., Santa Cruz, Laguna

IBP No. 848920, 01.06.2012, ManilaIV

PTR No. 8163771, 02.05.2012, Laguna

Roll No. 42246 admitted on 9 May 1997

MCLE Compliance No. III-0020564

________________________________________________

Copy furnished --

Atty. RIZALITO V. CABATCAN

28-C T-3, Thre Adriatico Place

Adriatico Street, Ermita, Manila

Received by:

Signature : _____________________________

Name : _____________________________

Position : _____________________________

Date :

reply zabate

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