2a LAW VWERALAW DEL ROSARIO WABOCA GONZALES GRASPARK FEB 09 205 Jd REPUBLIC OF THE PHILIPP iVEB DEPARTMENT OF LABOR AND EM NATIONAL CONCILIATION AND MEDIATION BOARD OFFICE OF THE PANEL OF VOLUNTARY ARBITRATORS NATIONAL CAPITAL REGION IN RE: VOLUNTARY ARBITRATION BETWEEN: RUEL I. ANOBA, COMPLAINANT, VA CASE No. RCMB-NCR-MVA-046-04- 06-2014 -AND- CHAIRMAN EDGAR C. RECINA AVA GREGORIO B. SIALSA AVA GREGORIO C. BIARES, JR. SDV MARITIME CORP., SOUTHERN SHIPPING PTE., LTD. - SINGAPORE, AND MR. VALERIANO R. DEL ROSARIO, RESPONDENTS. x: xX REPLY AD CAUTELAM COMES NOW, complainant RUEL I. ANOBA, by the undersigned counsel, unto this Honorable Panel, without abandoning his vehement opposition to the admissibility of respondents’ Position Paper, most respectfully submits this Reply Ad Cautelam. PREFATORY STATEMENT Respondents submitted pictures full of lies. In their desperate attempt to avoid liability, respondents submitted purported pictures which should not be admitted in this Honorable Proceeding.In fact, respondents already admitted in their position paper that complainant is permanently and totally disabled to perform his seafaring duties by virtue of his incapacity to work for more than 240 days as stated by their company-doctors in their position paper. In Annex “V” of Respondents’ Position Paper, the medical clearance was issued on the 244" day. in Annex ‘W” of Respondents’ Position Paper, the fit to work declaration and the final disability grading were only issued on the 245" day.’ Clearly, for more than 240 days, complainant remains permanently and totally disabled. The case of PhilAsia Shipping Agency Corporation and/or Intermodal Shipping, Inc. v. Tomacruz, G.R. No. 181180, August 15, 2012 falls on all fours. In the case of PhilAsia, when the company- designated physician made a declaration that Tomacruz was already fit to work, more than 240 or 249 days had already lapsed from the time he was repatriated. As such, Tomacruz’ temporary total disability should be deemed total and permanent, pursuant to Article 192 (c)(1) of the Labor Code and its implementing rules. Here, complainant's injury was unresolved despite the treatment given by the company-doctors within the statutory treatment period and as such, complainant was unable to engage in any gainful employment up this very day. From the time complainant was repatriated on 17 June 2013, he submitted himself to the care and treatment of the company- designated physician. When the company-designated physician made a declaration on 11 February 2014 that complainant was allegedly fit to resume sea duties, 245 days had already lapsed from the time he was repatriated.” As such, his temporary total disability should be deemed total and permanent, pursuant to Article 192 (c) (1) of the Labor Code and its implementing rules. At any rate, company doctors’ declaration that complainant is already cleared from Orthopedics standpoint is not a conclusive proof that complainant is already fit for sea duties and should not be given any merit by the Honorable Panel.* Respondents even admitted that further rehabilitative treatment will not improve complainant’s medical condition* How can complainant then be considered as fit to work, when his medical condition remains unresolved? ' Annexes “V" and “W” of Respondents’ Position Paper. > Annex “W” of Respondents’ Position Paper. ; Annex “V” of Respondents’ Position Paper. Tid.Respondents contradicted their own medical clearance when they issued a grade 11 disability assessment. How can a seafarer resume his sea duties when he remains suffering from his injury? How can a seafarer resume his duty when he cannot even make a fist? The issuance of a disability grading is a categorical admission that complainant remains incapacitated to resume his sea duties. Thus, complainant can only be considered, in fact and in law, as permanently and totally disabled. In addition, nowhere under existing laws and applicable jurisprudence does it state that the assessment issued by the company-doctors is the final, binding, and sole determining factor regarding a seafarer's disability claim. Respondents argue that complainant is only entitled to disability benefits equivalent to Grade 11 based on the assessment of their company-doctors. We disagree. Wealth of evidence presented by both parties will prove that complainant is already permanently and totally disabled. Respondents contend that disability compensation should be based on the disability grading issued by their company-doctors. However, such argument has already been debunked by the High Court as early as 2001 in the landmark case of Philippine Transmarine, Inc., v. NLRC*, to wit: “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. In disability compensation, We likewise held, 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." (Underscoring ours) Until today in a catena of cases: Valenzona v. Fair Shipping Corporation, G.R. No. 176884, October 19, 2011, 659 SCRA 642, 652-653, citing Quitoriano v. Jebsens Maritime, inc., G.R. No. 179868, January 21, 2010, 610 SCRA 529, 536; loreta v. Philippine Transmarine Carriers, Inc., G.R. No. 183908, December 4, 2009, 607 SCRA 796, 804, citing Philimare, Inc./Marlow Navigation Company, Ltd. v. Suganob, 579 Phil. 706, 715 (2008), it has been the High Court's consistent ruling that in disability compensation, ‘it is not the *G.R.No, 123891, 28 February 2001.injury which is compensated, but rather it is the incapacity to work resulting in the impairment of one’s earning capacity.” In relation to the above principles of law, the case of Kestre/ Shipping Co. Inc. v. Munar, G.R. No. 198501, January 30, 2013 is instructive. In this case, the High Court categorically declared that injuries or disabilities not classified as Grade 1 disability may be considered as permanent and total. under Section 32 of the POEA-SEC, only juries or disabilities that aro classified as Grade 1 may be considered as total and permanent. However, if those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally and permanently disabled. x x x XXX x x x That while the seafarer is partially injured or disabled, he is not precluded from eaming doing the same work he had before his injury or disability or that he is accustomed or trained to do. Otherwise, if his illness or injury prevents him from engaging in gainful employment for more than 120 or 240 days, as the case may be, he shall be deemed totally and permanently disabled,” (Emphasis and underscoring ours). OPPOSITION TO THE ADMISSIBILITY OF RESPONDENTS’ POSITION PAPER 1. Based on the records of this case, respondents already submitted their position paper on 30 September 2074, reply on 23 October 2014, and rejoinder on 20 November 2014. 2. Upon the submission of the parties’ respective pleadings, the instant case was already submitted for decision, as agreed by the parties. 3. __ In line with the preceding circumstances, there is no basis for respondents to file their belated position paper. They alreadysubmitted their pleadings before this Honorable Panel and the case is already deemed submitted for decision. 4. Thus, complainant vehemently opposes the admissibility of respondent Del Rosario's position paper belatedly filed on 7 January 2015. Admitting respondent Del Rosario's position paper will only further delay the resolution of this case and the administration of justice. The Honorable Panel may kindly note that respondents’ repeatedly state, in categorical terms, in their Position Paper, Reply and Rejoinder that the pleadings they filed were their’ “joint” Pleadings. Thus, it is not only surprising but totally unfair for respondent Del Rosario to file in this very late stage of the case his separate Position Paper. It smacks the basic rules of fair play in judicial proceedings. 5. However, without abandoning complainant's vehement opposition, we respectfully submits to the Honorable Panel this Reply Ad Cautelam, if only to address respondent Del Rosario’s arguments, thus — RESPONDENTS’ ARGUMENTS L COMPLAINANT IS NOT ENTITLED TO PERMANENT AND TOTAL DISABILITY BENEFITS. i. COMPLAINANT IS NOT ENTITLED TO DAMAGES AND ATTORNEY'S FEES. ll. RESPONDENT VALERIANO R. DEL ROSARIO CANNOT BE HELD PERSONALLY LIABLE. Collectively, respondents’ preceding arguments are mistaken, misplaced, and misleading. Such arguments deserve scant consideration by the Honorable Panel.COUNTER-ARGUMENTS I. COMPLAINANT Is ENTITLED TO PERMANENT AND TOTAL DISABILITY BENEFITS. 1, Respondents argue that complainant is already cleared from Rehabilitation Medicine standpoinf and from Orthopedics standpoint.’ However, the very medical reports containing such declarations totally debunked complainant's fitness to work as a seafarer. According to the company-paid doctors, complainant still has limited range of motion. Complainant still has residual contracture and grip weakness. Complainant still has difficulty in closing his left hand fully 2. It is clear from the words of the company-paid physicians that complainant in his present condition clearly cannot resume sea duties. The truth is that complainant remains suffering from his hand injury. It is clear from the respondents’ medical reports that complainant continues to suffer from his debilitating injury. It is quite disturbing how the company doctors came up with a medical clearance when the very findings and assessments of their own paid physicians clearly show that complainant's injury remains unresolved. 3. Thus, it is clear based on respondents’ medical reports that complainant's injury remains present. This is the reason why company-paid doctors, in their Medical Reports, would not even categorically declare that complainant was completely cured; constraining them into admitting that complainant's disability is equivalent to grade 11 disability assessment. 4. This is enough plausible reason to doubt the medical reports of company-paid physicians. Obviously, a clearance with restrictions and limitations would not justify a conclusion that he is fit to resume sea duties. Relevant to this, Inter-Orient Maritime, Inc., et al. v. Candava, G.R, No 201251, 26 June 2013 recognized that a “conditional” fit to work as equivalent to “not fit to work assessment.” ® Annex “W” of Respondents’ Position Paper. 7 Annex “V” of Respondents’ Position Paper. ® Annex “W” of Respondents’ Position Paper. 65. In fact, notwithstanding the purported medical clearance from the company-paid physicians, the same medical report categorically stated that complainant still has limited range of motion. Complainant still has residual contracture and grip weakness. Complainant still has difficulty in closing his left hand fully.° 6. The findings of the company-paid doctors were reinforced by the findings of independent physician Dr. Pimentel in his medical report dated 5 April 2014 or 292 days from complainant's repatriation. '° Here, he emphasized that complainant is not fit for sea duty and that complainant still suffers from the following: > Poor functioning left hand; >» Weak grip strength; > Weak pinch strength; > Cannot hold tools; > Cannot operate machines; > Cannot carry heavy loads; > Cannot manipulate small objects. 7. It is now undeniable that complainant is permanently and totally incapacitated in carrying out the duties his employment demands. Complainant is unfit to work. This conclusion was confirmed by the company-designated physician"' and independent physicians Drs. Catapang’? and Pimentel."? With the physical demands of his job which requires repetitive lifting, pulling, loading and unloading heavy tools, provisions and equipment, and his unresolved injury, it is impossible for complainant to resume his sea duties. 8. It is evident from the foregoing that, as per independent physicians’ opinions as confirmed and corroborated by company-paid physicians, complainant is permanently and totally incapacitated from engaging in any gainful occupation. Therefore, his disability is permanent and total. 9. The medical findings of independent physicians who attended the condition of herein complainant may be received in evidence and used as proof of the fact in dispute. These doctors’ certification as to the nature of claimant's disability may be given credence as they, being doctors duly licensed by the Professional ° Annex “W” of Respondents’ Position Paper. 10 Annex “BB” of Complainant's Position Paper. ' Annexes “V” and “W” of Respondents’ Position Paper. ” Annex “AA” of Complainant’s Position Paper. "3 Annex “BB” of Complainant’s Position Paper. 7Regulatory Commission (PRC), would not make untruthful certification. Indeed, no physician in his right mind and who is aware of the far-reaching and serious effect that his or her statements would cause on a money claim would vouch indiscriminately without regarding his own interests and protection. 10. And finally, respondents have not likewise summoned complainant to report back for work, a circumstance conclusively reflective of his permanent total disability. Such non-hiring by the respondents is a convincing proof and a strong indication of complainant's incapacity. This is even without mentioning yet that on account of his injury, complainant was not able to land a gainful employment up to this very day. 11. Also, complainant has yet to undergo more treatment. With the present medical condition of the complainant, it is impossible for him to carry out the usual tasks entailed by his position. By this time, it should be elementary to consider that a person who suffered a debilitating hand injury cannot be expected to execute a job that entails carrying, loading, unloading and other strenuous activities, such as that of a seafarer. The physical condition of a person beset with such injury essentially preciudes him from performing said crucial tasks of a seaman. 12. Complainant was even diagnosed by, not one, not two, but three physicians for his hand injury. By then, complainant would not have sufficiently recovered from his medical condition. In other words, it became evident that complainant was permanently and totally disabled, unfit to return to work as seafarer and earn therefrom, given his present medical condition. 13. Respondents, in their position paper, would like to make it appear that complainant is already fit to resume his sea duties by submitting purported pictures showing alleged complainant lifting a plastic garbage container. 14. We dispute the admissibility and authenticity of respondents’ submitted photographs. 15. Photographs of persons, things and places when instructive to the understanding of the case will only be admitted in evidence if the same is relevant and competent. It is competent when the photograph is properly authenticated by a witness who is familiar with the scene or person portrayed and who testifies that the photograph faithfully represents what it depicts."* ™ Riano, Evidence, 160-161 (2009).16. The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. '® 17. The correctness of the photograph as a_ faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy." 18. Under Sec. 1, Rule 11 of Electronic Rules of Evidence, which may be applied in suppletory to the Voluntary Arbitration proceedings, photographic evidence of events, acts or transactions shall be admissible in evidence provided: (a) It shall be presented, displayed and shown to the court; and (b) It shall be identified, explained or authenticated by either (i) The person who made the recording, or by (ii) Some other person competent to testify on the accuracy thereof. 19. Although the submitted photographs are relevant to this case, such photographs are not competent pieces of evidence because it was not properly authenticated and identified by the photographer or by any other competent witness who can testify as to its exactness and accuracy. 20. Clearly, the subject photographs are dubious because it failed show if the man therein is indeed the complainant. The subject Photographs were not identified and authenticated. Therefore, subject photographs are inadmissible in this case. 21. Notwithstanding the issues on the admissibility and authenticity of subject photographs, the same will not negate complainant's case for permanent and total disability. Respondents alleged that lifting a garbage container is a strenuous activity. We disagree. As the pictures clearly show, the alleged complainant was merely lifting a plastic garbage container. Such container is light and can be lifted easily without any heavy physical exertion. Such activity is different from the work of a seafarer in which complainant was required to lift and carry heavy loads and provisions majority of which are made of steel. 1S Sison v. People, 250 SCRA 58, 75. * Ibid. "° Ibid.22. The fact remains that the pictures submitted by respondents are inconclusive pieces of evidence to negate complainant's assertions that he is permanently and totally disabled. Such pictures cannot be considered over the specific findings of both the company and independent physicians that complainant is permanently unfit for sea duties. The disability grade-11 has no basis. 23. Respondents contend that if complainant is indeed disabled, it is only equivalent to a grade 11 disability assessment based on findings of the company-paid doctors. However, such allegation is misleading. The disability grading is unfounded as no medical report/opinion or reference to any publication explaining said impediment rating was appended to the medical report containing their pronouncement. As to how it was arrived at, the medical evaluation does not say so. Again, there was no proof to fortify such claim. 24. The disability grading failed to declare whether complainant can resume his shipboard tasks on board respondents’ vessel, without causing (further) injury unto his person. How then can a seafarer beset with a hand injury perform the laborious tasks of carrying, loading and unloading heavy equipment and provisions, and other heavy labor usually and customarily performed on board? Certainly, the disability grading cannot be interpreted as a capacity to execute the laborious tasks of a seafarer. 25. The only significance of the company doctors’ final medical report is the categorical admission and recognition that complainant still suffers from his injury. It is clear that complainant remains beset with the impediments that bar him from carrying out the duties his employment demands. With the physical demands of his job, it is impossible for him to resume sea duties. The foregoing issuance of the disability grading simply proves that at the time he was declared fit to resume sea duties by the company-paid doctors, he is not yet well. As he is not fully cured, he is certainly not fit to work, 26. Based on the above factual circumstances, Seagull Maritime Corp. v. Dee" finds application, in this wise: 1G. No, 165156, 2 April 2007. 10“Accordingly, if serious doubt exists on the company-designated physician's declaration of the nature of a seaman's 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.” (Emphasis and underscoring supplied) 27. Further, without the opinion and comments explaining the disability grading vis-4-vis the complainant's capacity to resume his customary work, such findings are sweeping and made without any adequate, specific, and comprehensive basis. Unlike the findings made by independent Drs. Catapang and Pimentel who examined and scrutinized complainant's medical and physical condition vis-a- vis the laboratory tests and complemented the same with significant research studies. 28. Further, the medical findings of these independent physicians who attended the condition of herein complainant may be received in evidence and used as proof of the fact in dispute. This doctors’ certification as to the nature of claimant's disability may be given credence as they normally would not make untruthful certification. Indeed, no physician in his right mind and who is aware of the far reaching and serious effects that his or her statements would cause on a money claim would vouch indiscriminately without regarding his own interests and protection. 29. At best, the medical reports containing the disability grading issued by the company-paid doctors relied upon by respondents are tenuous and speculative in their respect. As such, they cannot be accorded more weight than those of independent doctors who do not harbor any interest in this case, aside from the sanctity of the medical profession. 30. The assessment or disability grading is clearly misplaced, with all due respect, since it does not appropriately address the all- important query: whether the same will still enable the seafarer to re- acquire his capacity to earn income. For times that are countless, we are reminded by the didactic pronouncement in Seagull Maritime Corp. v. Dee:"® “Disability is intimately related to one’s earning capacity. The test to determine its gravity is the impairment or loss of one’s capacity to earn and not its mere medical significance. Permanent. total 'S GR. No. 165156, 2 April 2007. 11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 material acts necessary to the prosecution of a gainful occupation without serious discomfort or pain and without material injury or danger to life. In disability compensation, it is not the injury per se which is compensated but the incapacity to work.” (Emphasis and underscoring supplied) 31. To emphasize the preceding jurisprudential doctrine, what is being compensated is not the illness or injury but the incapacity to work resulting in the impairment of one’s earning capacity. Labor tribunals are not bound by the findings of any doctor. 32. As expected, respondents relied heavily in the bias and self-serving assessments and findings of their paid physicians. They likewise paint a picture that only their doctors are credible and competent enough to assess the condition of the complainant. Respondents further argue that such assessment by their paid doctors should be considered final and binding. We submit to the contrary opinion. 33. Respondents’ argument that the company-doctor as the only person authorized to assess the medical condition of the seafarer has no merit. The recent case of Nazareno v. Maersk Filipinas Crewing, Inc.® is enlightening, to wit: “Verily, in the cited case of Seagull Maritime Corporation v. Dee, this Court held that nowhere in the case of German Marine Agencies, Inc. v NLRC was it held that the company-designated physician's assessment of the nature and extent of a seaman's 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 ? G.R.No. 165156, 2 April 2007. 12seafarer of his right to seek a second opinion.” (Emphasis and underscoring ours) 34. Wallem Maritime Services Inc. Et Al. v. NLRC and Tiburcio D. Dela Cruz” states that the company designated physician is not the only authority in the assessment of a seafarer’s disability, as the seafarer is permitted to consult a physician of his choice, in this wise: “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.” (Emphasis and underscoring ours) 35. In the case of Esguerra v. United Philippine Lines, Inc., Et. al?" the Supreme Court had this to say about the disability assessments issued by company-designated physicians, to wit: “The Court is not naive of such interplay of force between the seafarer, the company and the latter's accredited physicians. As the medical coordinators of the hospital that represents the company in the conduct of medical evaluations, they are accustomed to do so in order to underrate the compensation the company must pay to the seafarer-claimant. This is precisely one of the reasons why the seafarer is given the option by the POEA-SEC to seek a second opinion from his preferred physician.” (Emphasis and underscoring ours) 36. In addition, let the following doctrinal decision of the Supreme Court enlighten us about the findings of the company- designated doctors in this case of United Philippine Lines, Inc. and/or Holland America Line, Inc. v. Beseril.”? 2° GR. No, 163838, 25 September 2008. 21 GR. No, 199932, 3 July 2013. GR. No. 165934, 12 April 2006. 13“While the Doctors Renato Abaya and Carter Hill thereafter cerfified that [respondent] is physically fit to work again, We note that this occurred only after [respondent] had already filed a claim for permanent disability. We cannot but agree with the [respondent] that with the proliferation of obviously biased company doctors whose loyalty rest completely upon the company they serve, their findings cannot be taken as gospel truth. “In Wallem Maritime Services v. NLRC, [the] High Tribunal had this to say: "xxx (The) opinions of petitioner's doctors to this, effect should not be given evidentiary weight as they are palpably self-serving and biased in favor of petitioners, and certainly could not be considered independent." (Underscoring ours) 37. Finally, let the following 2013 pronouncement of the Supreme Court answer once and for all the query as to whether the assessment and condition of a seafarer should be left only to the company-designated physicians: “Nonetheless, the petitioners’ assertion that Laurel's condition and disability can only be assessed by the company-designated physician is a blatant misconception of the provisions of the law. Section 20 (B), paragraph (3) of the POEA-SEC provides that: ‘Section 20 (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: XXX ‘3. Upon sign-off from the vessel for medical treatment, the seafarer is entited 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. XXK 14‘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 doctor's decision shall be final and binding on both parties. (Emphases and underscoring supplied) “Based on the aforequoted provision, it is crystal clear that the determination by the company- designated physician pertains only to the loment of the seafarer to sickness allowance and nothing more. Moreover, the said provision recognizes the right of a seafarer to seek a second medical opinion and the prerogative to consult a physician of his choice. In fact, it allows a third opinion in case the seafarers doctor disagrees with the assessment of the company-designated physician Therefore, the provision should not be construed that it is only the company- designated physician who could assess the condition and declare the disability of seamen. The provision does not serve as a limitation but rather a guarantee of protection to overseas workers”.” (Emphasis supplied) 38. The medical report containing the disability grading issued by company-paid doctors remains a suspect and should not be given weight and credence. Relative to interim grade assignments, company-paid doctors engage in this practice to prevent the statutory period from accidentally expiring on them resulting in a Grade 1 disability by operation of law. In effect, they are baseless as they do not represent the true and final state of health of the complainant. The natural tendency of company-paid doctors is to assign the lowest Possible grade, subject to upgrading if warranted by the circumstances. The maximum grade is never assigned by them because it is difficult to downgrade it later. 39. Verily, complainant has a right to appoint a doctor of his own choice in order to protect him from any inaccurate medical findings, all the more, that his life and limb depend on it. 40. If the assessment of disability is left entirely on the sole findings of the company-doctors, then the complainant's livelihood and well-being will be at the mercy of these doctors. This is the very evil that the 2010 POEA Standard of Employment Contract and the Labor Code seek to prevent. Labor tribunals are not bound by the findings of any doctor—be it the company-doctor, the complainant's independent doctor or the third doctor that may be jointly appointed 2} Magsaysay Maritime Services and Princess Cruise Lines, LTD. v. Laurel, G.R. No. 195518, 20 March 2013. 15by both parties. Whatever be the findings of any doctor will be evaluated by the labor tribunals based on their own inherent merit. 41. At any rate, the disability grading issued by the company- doctor is immaterial to complainant's claim for permanent and total disability assessment. /t must be emphasized that complainant remains incapacitated to continue his sea duties for more than 240 days. 42. Complainant's permanent total disability attached already after more than 240 days of treatment and incapacity to work.* Otherwise stated, complainant is, by operation of law, deemed totally and permanently disabled after the lapse of 240 days of incapacity from work. Any disability grading issued after this period is already immaterial for the law already steps in to characterize the seafarer's disability as total and permanent. 43. Here, company-paid doctors only issued a certification after 245 days of treatment.” 44, In the case of Fil-Pride Shipping Company, Inc. v. Edgar A. Balasta, G.R. No. 193047, 3 March 2014, company-doctors must arrive at a definite assessment of the seafarer’s fitness to work or permanent disability within the period of 120 or 240 days, if company- doctor fails to do so and the seafarer’s medical condition remains unresolved, the latter shall be deemed totally and permanently disabled. In fact, the lapse of 240 days to be considered as permanently and totally disabled is no longer necessary. The case of Balasta provides that a suffering seafarer can be declared as totally and permanently disabled even before the lapse of the 240-day treatment period because his incapacity to work became evident and his disability continued and he was unable to engage in any gainful employment during such period. 45. The case of PhilAsia Shipping Agency Corporation and/or Intermodal Shipping, Inc. v. Tomacruz, G.R. No. 181180, 15 August 2012 falls on ail fours. In the case of PhilAsia, when the company- designated physician made a declaration that Tomacruz was already fit to work, more than 240 or 249 days had already lapsed from the time he was repatriated. As such, Tomacruz’ temporary total disability should be deemed total and permanent, pursuant to Article 192 (c)(1) of the Labor Code and its implementing rules. * Annexes “V" and “W” of Respondents’ Position Paper. 25 Annex “W” of Respondents’ Position Paper. 1646. Here, complainant's injury was unresolved despite the treatment given by the company-doctors within the statutory treatment period and as such, complainant was unable to engage in any gainful employment up this very day. From the time complainant was repatriated on 17 June 2013, he submitted himself to the care and treatment of the company-designated physician. When the company-designated physician made a declaration on 11 February 2014 that complainant was allegedly fit to resume sea duties, 245 days had already lapsed from the time he was repatriated.”° As such, his temporary total disability should be deemed total and permanent, pursuant to Article 192 (c) (1) of the Labor Code and its implementing tule. 47. Thus, based on the evidence even submitted by respondents, complainant is, by operation of law, conclusively presumed as permanently and totally disabled notwithstanding the clinical assessments of the company-paid physicians. 48. At any rate, the medical clearance declaring complainant cleared from orthopedics standpoint is immaterial to complainant's claim for permanent and total disability assessment. It must be emphasized that complainant remains incapacitated to continue his sea duties for more than 240 days. 49. The company-designated physician's certification that complainant was already fit to resume sea duties does not make him ineligible to receive permanent total disability benefits. The fact remains that complainant was unable to work for more than 240 days as he was only certified to work on 11 February 2014.7” Consequently, complainant's disability is considered permanent and total, and the fact that he was declared, fit to work by the company- designated physician "does not matter."”? 50. Based on the medical reports from no less than the company-doctors, it is clear that complainant remains suffering from injury for more than 240 days. Therefore, the medical clearance has no basis. It was not final, definite, and determinative of complainant's disability. 2 Annex “W” of Respondents’ Position Paper. 27 Annex “W” of Respondents’ Position Paper. 28 philAsia Shipping Agency Corporation and/or Intermodal Shipping, Inc. v. Tomacruz, GR. No, 181180, August 15,2012. 1751. For the record, the medical clearance issued by the company-doctors cannot be considered as final and definite. Such clearance is belated and immaterial in assessing the medical condition of herein complainant. 52. In the case of Fil-Pride Shipping Company, Inc. vs. Edgar A. Balasta, G.R. No. 193047, March 03, 2014, company-doctors must arrive at a definite assessment of the seafarer’s fitness to work or permanent disability within the period of 120 or 240 days, if company- doctor fails to do so and the seafarer's medical condition remains unresolved, the latter shall be deemed totally and permanently disabled. 53. Based on the evidence even submitted by respondents, complainant is, by operation of law, conclusively presumed as permanently and totally disabled notwithstanding the issuance of the medical assessments of company-paid doctors. 54. Finally, respondents tried to find refuge from Sec. 32 of the POEA Contract enumerating the Grade 1 injuries/ilInesses. However, such enumeration is neither exclusive nor limitative. The case of Kestrel! Shipping Co. Inc. v. Munar, G.R. No. 198501, January 30, 2013 is instructive: “Indeed, under Section 3229 of the POEA-SEC, only those injuries or disabilities that are classified as Grade 1 may be considered as total and permanent. However, if those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally and permanently disabled, In other words, an impediment should be characterized as partial and permanent not only under the Schedule of Disabilities found in Section 32 of the POEA-SEC but should be so under the relevant provisions of the Labor Code and the Amended Rules on Employee Compensation (AREC) implementing Title I, Book IV of the Labor Code. That while the seafarer is partially injured or disabled, he is not precluded from earning doing the same work he had before his injury or disability or that he is accustomed or trained to do. Otherwise, if his illness or injury prevents him from engaging in gainful employment for more than 120 or 240 days, as the case may be, he shall be deemed totally and permanently disabled.” (Emphasis and underscoring ours) 18Complainant is permanently and totally disabled. 55. Having established that the findings of the company-paid doctors as immaterial and should not be given any merit by this Honorable Office, we now come to the discussion whether complainant is permanently and totally disabled. 56. As exhaustively pointed-out by complainant in this case, the medical reports even submitted by respondents, and for the longest time that complainant remains to be incapacitated to perform his seafaring duties for more than 240 days, complainant can only be considered as permanently and totally disabled in fact and in law. 57. We again submit the prevailing doctrine anent the issue of disability compensation. For times that are countless, The Honorable Supreme Court makes a reference to this doctrine and it is just fitting that we highlight it: “Di 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. In disability compensation, We likewise held, 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." (Underscoring ours) 58. In relation to the above pronouncement, we submit to this Honorable Office the case of Kestre! Shipping Co. Inc. v. Munar, G.R. No. 198501,30 January 2013. In this case, the High Court ruled: “Indeed, under Section 3229 of the POEA-SEC, only those injuries or disabilities that are classified as Grade 1 may be considered as total and permanent. However, if those injuries or disabilities with a disability grading from 2 to 14, hence, partial and ® Philippine Transmarine, Inc., v. NLRC, G.R. No. 123891, 28 February 2001. 19Permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally and permanently disabled. in other words, an impediment should be characterized as partial and permanent not only under the Schedule of Disabilities found in Section 32 of the POEA-SEC but should be so under the relevant provisions of the Labor Code and the Amended Rules on Employee Compensation (AREC) implementing Title II, Book IV of the Labor Code. That while the seafarer is partially injured or disabled, he is not precluded from earning doing the same work he had before his injury or ity or that he is accustomed or trained to do. Otherwise, if his illness or injury prevents him from engaging in gainful employment for more than 120 or 240 days, as the case may be, he shall be deemed totally and permanently disabled.” (Emphasis and underscoring ours) 59. Complainant is permanently and totally disabled. For more than 240 days from complainant's repatriation until today he is incapacitated in performing his sea duties. He is therefore, by operation of law, considered permanently and totally disabled. 60. It is undisputed that complainant was medically repatriated on 17 June 2013. It is undeniable that based on the medical reports submitted by respondents,° after more than 240 days from complainant's repatriation, he remained suffering from his hand injury. 61. Therefore, for more than 240 days, complainant remains under medical care and treatment and for more than 240 days, complainant remains to be incapacitated in performing his sea duties. As such, this leads us to the inevitable truth that complainant is already permanently and totally disabled in fact and in law. 62. The case of Fil-Pride Shipping Company, inc. vs. Edgar A. Balasta, G.R. No. 193047, 3 March 2014, falls on all fours. Here, the Supreme Court ruled, thus: “The company-designated physician must arrive at a definite assessment of the seafarer’s fitness to work or permanent disability within the period of 120 or 240 days, pursuant to Article 192(c)(1) of the Labor Code and Rule X, Section 2 of the AREC. If he Is to do so and the seafarer's medical condition *° Annexes “V” and “W” of Respondents’ Position Paper. 20remains unresolved, the latter shall be deemed totally and permanently disabled. On the other hand, an employee's disability becomes permanent and total even before the lapse of the statutory 240-day treatment period, when it becomes evident that the employee's disability continues and he is unable to engage in gainful employment during such period because, for instance, he underwent surgery and it evidently appears that he could not recover therefrom within the statutory period.” (Emphasis and underscoring ours) 63. Based on the preceding case laws and the POEA Contract, the following factual circumstances illustrate and prove complainant's permanent and total disability: (a) It was not denied that complainant was medically repatriated on 17 June 2013. (b) It is undeniable that for more than 240 days complainant remains to be incapacitated in performing his sea duties. (d) It is unquestionable that complainant had been rendered incapacitated by his injury as borne out by his failure to land any gainful employment for more than 240 days. (e) It is undisputed that the company doctor only gave an assessment of complainant's fitness to work or permanent disability on the 245" day” despite complainant's difficulty in closing his left hand fully and failure to make a complete fist. Verily, complainant's hand _ injury remains unresolved despite the alleged fitness to work issued by company-paid physicians. The fitness to work declaration issued by company-paid doctors cannot be 3! Annex “W” of Respondents’ Position Paper. 21considered as a definite assessment of complainant's fitness to work or permanent disability. 64. Therefore, complainant, in fact and in law, is now deemed totally and permanently disabled. 65. In Vergara v. Hammonia Maritime Services™, the Honorable Supreme Court ruled that a temporary total disability becomes permanent upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability. Citing the ruling of the Court: “In this respect and in the context of the present case, Article 192(c)(1) of the Labor Code provides that: ‘x x x 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; XXX “The rule referred to - Rule X, Section 2 of the Rules and Regulations implementing Book IV of the Labor Code - states: ‘Period of entitlement. - (a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid. However, the System may deciare the total and permanent status at anytime after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System. [Underscoring ours] “These provisions are to be read hand in hand with the POEA Standard Employment Contract whose Section 20 (3) states: ‘Upon sign-off from the vessel for medical treatment, the seafarer is entitled to sickness allowance * GR. No, 172933, 6 October 2008. 22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. “As these provisions operate, the seafarer, upon sign- off from his vessel, must report to the company- designated physician within three (3) days from arrival for diagnosis and treatment. For the duration of the treatment but in no case to exceed 120 days, the seaman is on temporary total disability as he is totally unable to work. He receives his basic wage during this period until he is declared fit to work or his temporary disability is acknowledged by the company to be permanent, either partially or totally, as his condition is defined under the POEA Standard Employment Contract and by applicable Philippine laws. If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. The seaman may of course also be declared fit to work at any time such declaration is justified by his medical condition. “Thus, upon petitioner's return to the country for medical treatment, both he and the respondent company acted correctly in accordance with the terms of the POEA Standard Employment Contract and the CBA; he reported to the company-designated doctor for treatment and the latter properly referred him to an ophthalmologist at the Chinese General Hospital, No dispute existed on the medical treatment the petitioner received, to the point that the petitioner executed a "certificate of fitness for work” based on the assessment/certification by the company- designated physician. XxX “As we outlined above, a temporary total disability only becomes permanent when so declared by the company physician within the periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period without a declaration of either fitness to work or the existence of a permanent disability.” (Emphasis and underscoring ours) 66. In a plethora of cases: C.F. Sharp Crew Management, Inc. et. al. v. Taok, G.R. No. 193679, July 18, 2012; Santiago v. 23Pacbasin Shipmanagement, Inc. and/or Majestic Carriers, Inc., G.R. No. 194677, April 18, 2012; Magsaysay Maritime Corporation and/or Westfal-Larsen Management A/S v. Lobusta, G.R. No. 1778578, January 25, 2012, the Honorable Supreme Court reiterated its ruling in Vergara and explained that permanent and total disability attaches when the company-designated physician, within the 240-day period, declares it to be so, or when after the lapse of the same, he fails to make such declaration. 67. The January 30, 2013 case of Kestrel Shipping Co. Inc. v. Munar, G.R. No. 198501 also upheld the ruling in Vergara and ruled as follows: “Indeed, under Section 3229 of the POEA-SEC, only those juries or disabilities that are classified as Grade 1 may be considered as total and permanent. However, if those injuries or disabilities with a disability grading from 2 to 14, hence, partial and permanent, would incapacitate a seafarer from performing his usual sea duties for a period of more than 120 or 240 days, depending on the need for further medical treatment, then he is, under legal contemplation, totally and permanently disabled. In other words, an impediment should be characterized as partial and permanent not only under the Schedule of Disabilities found in Section 32 of the POEA-SEC but should be so under the relevant provisions of the Labor Code and the Amended Rules on Employee Compensation (AREC) implementing Title ll, Book IV of the Labor Code. That while the seafarer is partially injured or disabled, he is not precluded from eaming doing the same work he had before his injury or disability or that he is accustomed or trained to do. Otherwise, if his ness or injury prevents him from engaging in gainful employment for more than 120 or 240 days, as the case may be, he shall be deemed totally and permanently disabled. “Moreover, the company-designated physician is expected to arrive at a definite assessment of the seafarer’s fitness to work or permanent disability within the period of 120 or 240 days. That should he fail to do so and the seafarer’s medical condition remains unresolved, the seafarer shall be deemed totally and permanently disabled.” (Emphasis and underscoring supplied) 68. Respondents may argue that their designated physician issued a final disability assessment on 11 February 2014 or over 240 days counted from complainant's repatriation. However, such 24issuance is immaterial to support their case. Records glaringly showed that for more than 240 days complainant remains to be incapacitated in performing his sea duties and he continues to suffer from his hand injury. It is but just that only permanent and total disability benefits be accorded to him. 69. As already extensively discussed in complainant's earlier submitted pleadings and in this reply, what determines a seafarer’s permanent disability is his inability to resume his customary work for a period of 120/240 days, notwithstanding any (1) fit-to-work declaration or (2) impediment rating issued by the company designated physician. This edict has been fortified in the case of Wallem Maritime Services, Inc. vs Emesto C. Tanawan™, the significant portion of which is reproduced as follows: “Dr. Lim treated Tanawan for the foot injury from December 1, 1997 until May 21, 1998, when Dr. Lim declared him fit to work. Within that period that lasted 172 days, Tanawan was unable to perform his job, an indication of a permanent disability. Under the law, there is permanent disability if a worker is unable to perform his job for more than 120 days, regardless of whether or not he loses the use of any part of his body. “That the company-designated physician did not tender any finding of disability is of no consequence. Disability should be understood more on the loss of earning capacity rather than on the medical significance of the disability. Even in the absence of an official finding by the company-designated Physician to the effect that the seafarer suffers a disability and is unfit for sea duty, the seafarer may still be declared to be suffering from a permanent disability if he is unable to work for more than 120 days. What clearly determines the seafarer's entitlement to permanent disability benefits is his inability to work for more than 120 days. Although the company designated physician already declared the seafarer fit to work, the seafarer’s disability is still considered permanent and total if such declaration is made belatedly (that ie, more than 120 days after repatriation). “After the lapse of the 120-day period from his repatriation, Tanawan consulted Dr. Saguin, his own private physician, for the purpose of having ation of the degree of his disal e, he was due to undergo bone gi and pinning of the 5th metatarsal bone, as Dr. Lim 3 GR. No. 160444, 29 August 2012. 25recommended. Dr. Saguin's finding that Tanawan had a Grade 12 disability was, therefore, explicable and plausible.” (Emphasis and underscoring ours) 70. More than ever, respondents already admitted in their position paper that complainant is permanently and totally disabled in performing his seafaring duties by virtue of his incapacity to work for over 240 days as admitted by their company-doctors in their position paper. 71. This is the lesson imparted by the case of Fil-Pride Shipping Company, Inc. v. Edgar A. Balasta, G.R. No. 193047, March 03, 2014. In this case, a suffering seafarer was declared as totally and permanently disabled even before the lapse of the 240-day treatment period because his incapacity to work became evident and his disability continued and he was unable to engage in any gainful employment during such period. ‘x x x an employee's disability becomes permanent and total even before the lapse of the ‘Statutory 240- day treatment period, when it becomes evident that the employee's disability continues and he is unable to engage in gainful employment during such period because, for instance, he underwent surgery and it evidently appears that he could not recover therefrom within the statutory period.” (Emphasis and underscoring ours) 72. In this case, complainant's injury was unresolved despite the treatment given by the company-doctors within the statutory treatment period and as such, complainant was unable to engage in any gainful employment up this very day. Thus, complainant can only be considered, in fact and in law, as permanently and totally disabled. Complainant is entitled to benefits under the parties’ CBA. 73. Following the provisions of the CBA in this case, complainant is entitled to a disability compensation of USD 155, 257.00 for his position suffering a permanent and total disability. 4 Annexes “V” and “W” of Respondents’ Position Paper. 2674, In this case, respondents did not deny that complainant's contract is covered by the subject CBA. Since complainant suffered a total and permanent disability, the award under the CBA is in order. 75. Since the applicability of the CBA in the instant case is not only admitted but was also authenticated by respondents, said CBA is obligatory on them having consented to its terms and conditions. 76. If the terms of a CBA are clear and have no doubt upon the intention of the contracting parties, as in the herein questioned provision, the literal meaning thereof shall prevail. That is settled.*° 77. Further, the Supreme Court ruled in Edwin B. Deauna v. Filstar Maritime Corp., G.R. No. 191563, 20 June 2012: “voc In effect, it was an admission on the part of both the petitioners and the respondents that the controversy involves the interpretation of CBA provisions relative to the claims for death compensation benefits. Stated otherwise, in the proceedings below, the contending parties both impliedly acquiesced to the applicability of the CBA provisions and not of the POEA SEC over the claims of the petitioners.” More importantly, the special clauses on collective bargaining agreements must prevail over the standard terms and benefits formulated by the POEA in its Standard Employment Contract. A contract of labor is so impressed with public interest that the more beneficial conditions must be endeavored in favor of the laborer. This is in consonance with the avowed Policy of the State to give maximum aid and full protection to labor as enshrined in Article XIII of the 1987 Constitution."(Emphasis and underscoring ours) 78. As explicated above, respondents are obligated to award complainant the appropriate amount of USD 155,257.00 compensation for a 100% degree of disability as provided in the CBA because of his permanent total disability. Under the afore-quoted legal provisions, and as expressed in a number of landmark cases, complainant is definitely entitled to total permanent disability benefits under the CBA. 79. The CBA is very clear in its terms, viz.: °° REM Corporation-Flour Division and SFI Feeds Division v. Kasapian ng ‘Manggagawang Pinagkaisa-RFM (KAMPI-NAFLU-KMU) and Sandigen at Ugnayan ng Manggagawang Pinagkaisa-SFI (SUMAPI-NAFLU-KMU), G.R. No. 162324, 4 February 2009. 27“Article 28; DISABILITY ‘28.1 A Seafarer who suffers permanent disability as a result of an accident whilst in the employment of the Company 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 wilful acts, shall in addition to sick pay, be entitled to compensation according to provisions of this Agreement. XXX ‘28.3 The Company shall provide disability compensation to the seafarer in accordance with APPENDIX 3, with any differences, including less than ten percent (10%) disability, to be pro rata. ‘28.4 A seafarer whose disability, in accordance with 28.2 above is assessed at fifty percent (50%) or more under the attached APPENDIX 3 shall, for the Purpose of this paragraph, be regarded as permanently unfit for further sea service in any capacity and be entitled to one hundred percent (100%) compensation. Furthermore, any seafarer assessed at less than fifty percent (50%) disability but certified as permanently unfit for further sea service in any capacity by the company-nominated doctor, shall aiso be entitled to one hundred percent (100%) compensation. Any disagreement as to the assessment or entitlement shall be resolved with clause 28.2 above." © 80. For herein complainant, his entitlement is not less than USD 155,257.00 under the CBA. The provisions of the subject CBA being more beneficial to the complainant must be applied pursuant to the social justice policy of the state and pursuant to the intent and purpose of the POEA Contract which is to afford the best terms and conditions to Filipino seafarers. 3 Annex “CC-1” of Complainant's Position Paper. 28Ul. COMPLAINANT IS ENTITLED TO DAMAGES AND ATTORNEY'S FEES. 81. Complainant had already presented more than enough evidence in his submitted pleadings before the Honorable Panel to prove that respondents are liable for damages and attorney's fees. 82. The company-paid doctors themselves have ascertained the nature of complainant's disability. It is such as would require assistance from complainant's employers-herein respondents. Despite said authoritative evidence, respondents have not responded accordingly. Complainant was even compelled to bring the matter before the labor tribunals and yet, as of this writing, respondents have remained headstrong in their refusal to give complainant what is rightfully due him under the law. Complainant is obviously relegated to a most disadvantageous and hapless position 83. It is to be reiterated that a willful and fraudulent breach of the parties’ contract gives rise to an award of moral and exemplary damages pursuant to Article 2220 and 2231, respectively of the New Civil Code which provide that: “ART. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches _of contract where the defendant _acted fraudulently or in bad faith.” XxX “ART. 2231. In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner." 84. The overwhelming evidence herein presented logically entails an award of damages in favor of complainant for an amount not less than PHP 500,000.00. 85. Finally, on the claim for attorney's fees, complainant is likewise entitled to it since on account of respondents’ baseless refusal to provide him with such disability benefits, he was compelled to litigate and spend hard-earned or even borrowed money to sustain him for lawsuit costs. Complainant is left with no other option but to 29bring this matter to the labor tribunals for decision. In this regard, the award for attorney's fees is mostly appropriate. 86. In this light, complainant makes reference to the apt proclamation of the High Court anent attorney's fees in the case of NFD international Manning Agents, Inc./Barber Ship Management Ltd. v Esmeraldo Illescas”’ viz.: “This case involves the propriety of the award of disability compensation under the CBA to respondent, who worked as a seaman in the foreign vessel of petitioner Barber Ship Management Ltd. The award of attorney's fees is justified under Article 2208 (2) of the Civil Code. Even if petitioners did not withhold payment of a smaller disability benefit, respondent benefit Moreover, in HFS Philippines, Inc. v. Pilarand loreta v. Philippine Transmarine Carriers, Inc., the Court sustained the NLRC's award of attorney's fees, in addition to disability benefits to which the concerned seamen-claimants were entitled. it is no different in this case wherein respondent has been awarded disability benefit and attorney's fees by the Labor Arbiter and the Court of Appeals. It is only just that respondent be also entitied to the award of attomey’s fees. In lloreta v. Philippine Transmarine Carriers, Inc., the Court found the amount of US$1,000.00 as reasonable award of attorney's fees.” (Emphasis supplied) “Article 2208 of the Civil Code provides: “Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except: XXX “2) When the defendant's act or omission has compelled the plaintiff to litigate with third Persons or to incur expenses to protect his interest; XXX “(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered.” (Emphasis supplied) 37 GR. No. 183054, 29 September 2010 3087. The above jurisprudential doctrine was reiterated in the case of Ramon G. Nazareno v. Maersk Filipinas Crewing, Inc. and Elite Shipping A/S," in this wise: “The Court also agrees with the ruling of the labor arbiter that petitioner is entitled to attorney's fees following Article 2208 of the New Civil Code, which allows its recovery in actions for recovery of wages of laborers and actions for indemnity under the employer's liability laws. Pursuant to prevailing jurisprudence, petitioner is entitled to attorney's fees of ten percent (10%) of the monetary award. 88. In the 13 January 2014 case of Alpha Ship Management Corp. et. al. v. Calo®, the Supreme Court awarded attomey’s fees because the seafarer was forced to litigate and incur expenses to protect his rights and interests. 89. In the 3 March 2014 case of Balasta, on the issue of attorney's fees, while petitioners have not been shown to act in gross and evident bad faith in refusing to satisfy respondent's demands, it is nonetheless true as a matter of law and it has been held in the past that where an employee is forced to litigate and incur expenses to protect his right and interest, he is entitled to an award of attorney's fees equivalent to ten percent (10%) of the total award at the time of actual payment. 90. The statutory basis for complainant's entitlement to attorney's fees is found in Article 2208 (8) of the New Civil Code, viz.: “Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except XXX “(8) In actions for indemnity under workmen's compensation and employers liability laws” (Underscoring supplied) 91. Complainant should not be faulted, much less punished, for vindicating his rights. Complainant was only constrained to bring this case because of respondents’ unjustified refusal to grant him his benefits under the law. Complainant’s claim for permanent and total disability benefits is justified by complainant's health considerations °° GR. No. 168703, February 26, 2013. °° GR.No. 192034. 31and a natural desire of every person to preserve his life for as long as possible. For being human, complainant should not be penalized. ill, MR. DEL ROSARIO CAN BE HELD PERSONALLY LIABLE. HE SHOULD NOT BE DROPPED FROM THIS CASE. 92. The law is clear and categorical. Republic Act 8042, as amended by Republic Act 10022, fixed the liability of Mr. Del Rosario together with the other co-respondents, to wit: “SEC. 10. MONEY CLAIMS “x x x If the recruitmentiplacement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or Partnership for the aforesaid claims and damages.” 93. Respondents’ assertion that corporate officers cannot be held personally liable for valid corporate acts which are done in good faith and within the scope of their authority is misplaced and cannot be applied in this case. /t bears stressing that the letter of law is clear and categorical: the corporate officers and directors and partners as the case may be, shall be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. 94. The respondents’ liability herein is solidary. There is solidary liability when the obligation expressly so states, when the law so provides, or when the nature of the obligation so requires. MAM Realty Development Corporation v. NLRC, G.R. No. 114787, 2 June 1995, on solidary liability of corporate officers in labor disputes, enlightens: “A corporation, being a juridical entity, may act only through its directors, officers and employees. Obligations incurred by them, acting as such corporate agents, are not theirs but the direct accountabilities of the corporation they represent. True, solidary liabilities may at times be incurred but ‘only when exceptional circumstances warrant such as, generally, in the following cases: XXX 32‘4. When a director, trustee or officer is made, by specific provision of law, personally liable for his corporate action.” (Emphasis and underscoring ours) 95. In this labor case, for instance, an officer may be held solidarily liable with the corporation because a specific provision of law made such officer personally liable for his corporate action. 96. RA 8042, as amended, lays down the statutory basis for the solidary liability of Mr. Del Rosario with the other co-respondents. The provision of law is clear and is not susceptible to interpretation. Cebu Portland Cement Company v. Municipality of Naga, Cebu provides: Time and again, it has been repeatedly declared by this Court that where the law speaks in clear and categorical language, there is no room for interpretation. There is only room for application. Further, Chartered Bank Employees Association vs. Ople states: Where the law is clear and unambiguous, it must be taken to mean exactly what it says and the court has no choice but to see to it that its mandate is obeyed. 97. Following the letter of the law, Mr. Del Rosario, as president of respondent manning agency SDV Maritime Corporation, is a proper party to this case because he is the responsible officer who acted on behalf of his other co-respondents. 98. All told, respondents’ arguments should not be given weight and credence and should not defeat complainant's claim for disability benefits. Based on the facts established by both parties’ evidence and applicable jurisprudence, complainant is entitled to his disability benefits. An award of the same would be germane to the purpose of the benefit, which is to help him in making ends meet at the time when his earning capacity is impaired because of the accidental-injury he suffered on-board respondents’ vessel. 99. Finally, more than the benefits entitled to him is the basic tenet in law—that justice must be served! Let it be emphasized that complainant is only asking respondents to give them him his /egally mandated benefits—benefits that the law vest in him, benefits that he so rightfully deserve. 100. It is fitting to conclude the above discussion with this pronouncement in United Philippine Lines, Inc. v. Beseril, G.R. No. 165934, 12 April 2006 citing the case of Wallem Maritime Services, Inc. v. NLRC, G.R. No. 163838, 25 September 2008: 33"The POEA Standard Employment Contract 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 favor or for the benefit of the seamen and their dependents. Only then can its beneficent Provisions can be fully carried into effect." “It is meet to point out that the Standard Employment Contract is not a limitation but a guaranteed protection to overseas contract workers.” PRAYER WHEREFORE, it is respectfully prayed that after due consideration, judgment be rendered holding respondents solidarily liable to pay complainant RUEL I. ANOBA, the following: 1) Permanent and total disability benefits in the amount of not less than USD155,257.00 under the CBA; 2) Moral and exemplary damages in the amount of not less than PHP 500, 000.00; and 3) Attorney's fees. Other reliefs just and equitable under the premises are likewise prayed for. Manila, 2 February 2015. 34TOLENTINO & BAUTISTA LAW OFFICES COUNSELS FOR THE COMPLAINANT SUITE 203, 2ND FLR. ESTRELLA CONDOMINIUM TAFT AVE. COR. QUIRINO AVE., MALATE, MANILA BY: RUFER D. TOLENTINO PTR No. 3825346; 12-23-14; Manila IBP Lifetime Roll No. 09609; 01-19-11; O.R. No. 852088 Roll of Attorneys No. 42839 MCLE Compliance No. IV - 0017352 April 23, 2013 TnB.Law@gmail.com - AND - ALLAN DUANE A. MENDOZA PTR No. 3825347; 23-12-14; Manila IBP No. 0981201; 05-01-15; Manila Roll of Attorneys No. 63091 Admitted to the Bar, 2014 adamendoza@gmail.com EXPLANATION Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure, copies of the instant pleading were served on opposing counsels by registered mail, due to lack of manpower and material time to effect personal service. ALLAN DUANE A. 35COPY FURNISHED ATTY. BERNARDO V. CABAL COUNSEL FOR THE RESPONDENTS, UNIT 2506 HERRERA TOWER, SALCEDO VILLAGE MAKATI CITY ATTY. JULIUS N. RABOCA ATTY. ROBERTO MARTIN S. BUENAVENTURA VERALAW 2/F, A& V CRYSTAL TOWER 105 ESTEBAN STREET, LEGAZPI VILLAGE MAKATI CITY 36