Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City


NATIONAL CAPITAL REGION
ARBITRATION BRANCH


ABELARDO P. ZAMARRO, OFW-SEA BASED
Complainant,
NLRC OFW Case No. NCR-0 4 -0 6 2 6 2 -1 2
-versus- Hon. Labor Arbiter Joel S. Lustria

ALPHA SHIPPING MNGT., CORP.,
TS MARITIME CORP., JAPAN and
/ or JUNEL CHAN,
Respondents,
x----------------------------------x


COMPLAI NANTS REPLY


COMPLAINANT ABELARDO P.. ZAMARRO by undersigned counsel,
by way of Reply to the Position Paper of respondents, respectfully states
as follows:

1. In their Position Paper, respondents wanted to make us believe that
complainant Zamarro is only entitled to partial disability benefits
corresponding to Impediment Grade 10 under the POEA Standard
Contract. Complainant Zamarro vehemently but respectfully
disagrees. First, relevant jurisprudence as hereinafter discussed,
taught us how to treat an impediment grading given by a company
designated physician in relation to the actual facts as well as the
findings of the seafarers own physician. Second, complainant
Zamarros amount of claim for total permanent disability benefit is
covered by the IBF-JSU/AMOSUP-IMMAJ Collective Bargaining
Agreement (CBA); and other pertinent labor laws and jurisprudence..

2. In a line of cases, the Supreme Court consistently held that the
findings and grading given by the company designated physician
are not absolute. Among the latest decisions on this matter is
ALPHA SHIPPING, MNGT., CORP., 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.
J ebsens 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 benefits
under 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 V of the
Labor Code differentiates the disabilities as follows:

Sec. 2. Disability. - (a) A total disability is temporary
if as a result of the injury or sickness the employee is unable
to perform any gainful occupation 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 exceeding 120 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 suffers from 'permanent total disability'
regardless of whether or not he loses the use of any part of
his body.

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 similar nature that he was
trained for, or accustomed to perform, or any kind of
work which a person of his mentality and attainments
could do. It does not mean absolute helplessness. In
disability compensation, it is not the injury which is
compensated, but rather it is the incapacity to work
resulting in the impairment of one's earning
capacity.
[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 lasts continuously for more than 120
days.
[35]
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
declared legally 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.






_________________________________________________________________________
[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.
Therefore, it is fitting that respondent be entitled to
permanent total disability benefits considering that he 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.)

3. It is therefore clear that the Grade 10 given by the company
designated physician is not absolutely acceptable in the light of the
above ruling, in relation to the actual facts of the instant case
attendant to the condition of complainant Zamarro; which facts are
discussed in detail in his Position Paper. Moreover, the second-
confirming opinion given by complainant Zamarros physician, a
specialist in cardiology medicine declares a total permanent
disability. Let us take note that the parties did not agree to seek any
doctors third opinion. For clarity, the following facts were squarely
raised in paragraphs 4 to 6, and paragraphs 12 to 14 of complainant
Zamarros Position Paper, showing that the principle in the above-
cited jurisprudence applies, viz

4. On 14 November 2011, five months after the
commencement of his contract of
employment and while the MV LIBRE was in
Tonda, Japan, complainant Zamarro suddenly
experienced severe chest pains and difficulty
in breathing. Because of this condition, the
Master of MV LIBRE prepared a Requisition
For Medical Treatment form, the necessity
of which was confirmed by a certain Dr.
Katsuhiro Shimizu. According to Dr. Shimizu,
complainant Zamarro had Congestive Heart
Failure; Renal and Liver Disfunction.
Complainant Zamarro was declared unfit for
duty and ordered to be immediately
hospitalized. [Copy of the Requisition For
Medical Treatment form is hereto (Position
Paper) attached as Annex C].

5. The following morning, 15 November 2011,
Zamarro collapsed and fell unconscious on-
board the MV LIBRE. Paralysis of the left side
of complainant Zamarros body was
immediately noticed by the Master of the
vessel, a certain Capt. Ma. Complainant
Zamarros case was later on determined what
is commonly known as a stroke as
hereinafter discussed. [Copy of the said
captains e-mail report to respondent TS
Maritime is hereto (Position Paper) attached
as Annex D].

6. Immediately after the unconscious body of
complainant Zamarro was seen by the crew,
he was brought to the Tokuyama Central
Hospital in Shunan City, Yamaguchi
Prefecture, Japan. The Medical Certificate
issued by the said hospital and signed by Dr.
Yuji Oada reads as follows

This is to inform health status and illness for
which above person (herein complainant
Zamarro) is now under treatment.

This 52-year-old male had a heavy feeling in
his chest from 4:00 AM 2011/11/15 and had a
medical examination by a clinic at Shuna City
(Shimizu Clinic). Shortly afterward he
developed left hemiparesis and gait
disturbance. He was introduced to our
hospital at 11:00 AM. His BCG showed Af
(atrial fibrillation) and USG revealed severe
cardiac failure (BP was 18%, MR II
o
, TR III
o
).
His symptom was unstable, i.e., high blood
pressure state improved his left limbs
weaknesses, however low blood pressure
status aggravated his paresis. Head MRI scan
revealed right middle cerebral artery
occlusion and diffusion-weighed image
showed a high intensity area in the right
insular cortex. We decided clot removal
therapy by Merel retriever (endovascular
treatment) must be effective, and treated
immediately. However, the clot was tight and
we could not obtain successful (total)
recanalization. After these medical
treatments, he was admitted in our ICU
(Intensive Care Unit). On 2
nd
day after
admission his CT scan revealed right incular
cortex and partial temporal lobe infarction.
He shows left upper and lower limbs severe
motor weaknesses. His vital sign is stable,
however intensive care is still required. He
needs 2 or 3 weeks treatment on admission
for his brain and heart. And after all, long
time rehabilitation will be needed.

Certified by Yuji Ueda MD.
Date 2011/11/16
(Signature)

xxxxx xxxxx xxxxx

12. Upon his discharge from St. Lukes Medical
Center, complainant Zamarro obviously
remained sick as his symptoms continued. He
had to continue rehab therapy and
medications. He also felt that his discharge
was premature, most likely to avoid greater
costs to respondent Alpha. Proof that
respondent Alpha was actually trying to
avoid further costs was the fact that when
complainant Zamarro filed a claim for Social
Security System (SSS) benefits; respondent
Alpha thru respondent Chan reported the
actual medical condition of complainant
Zamarro. However, respondent Chan also
stated that respondent Alpha was not giving
sickwages to complainant Zamarro alleging
that the latter was not entitled thereto,
inspite of the pertinent provisions of the IBF
JSU/AMOSUP-IMMAJ CBA covering the
vessel of assignment as well as the POEA
Standard Contract concerning the payment of
Sickwages.

[Copy of the Accident/Illness Report filed at
the SSS consisting of two pages is hereto
(Position Paper) attached as Annex L to L-
1.]

13. Not only did respondents refused payment of
sickwages; they likewise refused payment of
the total and permanent disability pay of
complainant Zamarro based on the IBF
JSU/AMOSUP-IMMAJ CBA when the said
complainant asked for such payment.
Complainant Zamarro knew and felt that
being a half paralyzed man now, he can never
again work as a seafarer on-board
international vessels. Hence, complainant
Zamarro sought a categorical statement
regarding his medical condition from a
specialist in Internal Medicine and Cardiology
at Philippine Heart Center. Complainant
Zamarro consulted Dr. May S. Donato-Tan,
MD, FPCP, FPCC, a specialist in Internal
Medicine and Cardiology.

14. Dr. May S. Donato-Tans findings, inter alia,
provided as follows

Disability Claim:

Based on the history, physical examination
and laboratory examination, the patient
suffered from HACVD, HPN Stage II, and S/P
CVA Cerebral Infarct 2 degree embolism 2
degree to Atrial Fibrillation and the
occurrence of Azotemia secondary to
Hypertensive Atherosclerotic Cardiovascular
Disease. Patient needs continuous monitoring
and medications to prevent recurrence and
progression of his signs and symptoms that
triggered his CEREBRO-CARDIOVASCULAR
ACCIDENT (CVA). Lifestyle modification is
also advised. He is also advised to see his
cardiologist and nephrologist on a regular
basis to prevent recurrence of his condition,
especially his CVA. HIS PERSISTENT
CONDITIONS HINDER HIM FROM
SUFFICIENTLY PERFORMING HIS WORK AS A
SEAMAN. HE IS THEREFORE GIVEN
PERMANENT DISABILITY AND DECLARED
UNFIT FOR DUTY IN WHATEVER CAPACITY
AS A SEAMAN.
(Capitalization supplied.)

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


[Copy of Dr. May S. Donato-Tans medical
report is hereto (Position Paper) attached as
Annex M with sub-annex M-1.]



4. If we are to believe and accept respondents over-riding posture that
the company-designated physicians impediment grading is
absolute, then the quasi-judicial powers of this Honorable Labor
Arbitration Office would be rendered useless and of no effect. 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.

5. Since complainant Zamarro is considered totally and permanently
unfit as a seafarer in the eyes of the law and jurisprudence in
relation to the facts, the proper amount of disability benefits must
be given to him. As previously stated, the vessel MV
LIBRE(owned/operated by respondent TS MARITIME CORP., JAPAN )
is appropriately covered by the IBF-JSU/AMOSUP-IMMAJ CBA
executed by complainant Zamarros Union (JSU/AMOSUP) and the
International Mariners Management Association of Japan (IMMAJ)
of which respondent ALPHA SHIPPING, MNGT., CORP. is a member.
The local arm is the Philippine-Japan Manning Consultative Council,
Inc. (PJMCC). Respondent entities are members of IMMAJ.
(Visit: http://www.immaj.jp/e_members/index.html; and
http://www.freewebs.com/immajpjmccfoundation/apps/members/)

6. Complainant Zamarro respectfully reemphasizes that he is entitled,
inter alia to [a]. Sickwages of at least 130 days basic pay; and [b].
Total Permanent Disability pay of US$148,500.00 based on the IBF-
J SU/ AMOSUP-IMAAF Collective Bargaining Agreement (CBA).

7. Article 26 of the IBF-JSU/AMOSUP-IMAAF Collective Bargaining
Agreement (CBA) provides, inter alia, that

Article 26: Sick Pay

xxxx xxxx xxxx

26.2 Thereafter the seafarers shall be entitled to sick pay at
the rate equivalent to their basic wage while they
remain sick up to a minimum of sixty (60) days and a
maximum of one hundred and thirty (130) days.

26.3 However, in the event of incapacity due to an accident
the basic wages shall be paid until the injured seafarer
has been cured or until a medical determination is
made in accordance with clause 28.2 concerning
permanent disability.

xxxx xxxx xxxx


8. On the other hand, Article 28 of the IBF-JSU/AMOSUP-IMAAF
Collective Bargaining Agreement (CBA) provides, inter alia, that

Article 28: Disability

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

xxxx xxxx xxxx

9. Appendix 3 of the IBF-JSU/AMOSUP-IMAAF Collective Bargaining
Agreement (CBA) provides that the compensation for total and
permanent disability of Senior Officers is US$148,500.00; as in the
case of complainant Zamarro who is a Second Officer.

10. In addition to all factual indications pointing that complainant
Zamarro will remain incapacitated for the rest of his life, the
disability of complainant Zamarro is total and permanent on
account of the application of law and jurisprudence to such factual
indications as it has been exhaustively discussed in complainants
Position Paper and in this reply.

11. The statements in the Position of Paper of the complainant are
hereby respectfully restated and repleaded in so far as they are
pertinent and relevant to prove the rest of the claims of complainant
Zamarro and refute the allegations in respondents Position Paper.
Complainant Zamarro respectfully maintains his position that in
addition to total permanent disability benefits, he is likewise
entitled to moral and exemplary damages, and attorneys fees as
previously discussed in his Position Paper.


R E L I E F
WHEREFORE, premises considered, it is respectfully asked of this
Honorable Labor Arbitration Office that the following be awarded in favor
of complainant by ordering respondents to pay -
1. TP Disability Benefits = US$ 148,500.00 US Dollars
2. Moral damages = PhP 500,000.00 PH. Pesos
3. Exemplary damages = PhP 500,000.00 PH. Pesos
4. Sickwages (130 days basic) = US$ 4,056.00 US Dollars
5. Attorneys Fees equivalent to 10% of total award
= US$ 14,850.00 US Dollars; and
= PhP 100,000 PH. Pesos
= PhP 405.80 US Dollars

Other reliefs just and equitable are respectfully sought.
RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, ______ August 2012.


Atty. EMMANUEL E. SANDICHO
Counsel for the Complainant
Ground Floor Hilario Bldg., Sambat-Gatid
National Highway, Sta Cruz, Laguna 4009
IBP No. 848920, 01.06.2012, Manila-IV
PTR No. 8163771, 02.05.2012, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0020564
________________________________________________
Copy furnished --

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15
TH
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Corner Makati and Gil Puyat
Avenues Makati City, Metro
Manila

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