REPUBLIC OF THE PHILIPPINES

Department of the Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City
MARIANO P. ALAMILLO
Complainant,

12

-versus-

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

CLEENE MARITIME CORP., Local Agency

NEMESTO H. MORTEL JR., President
HANG WOO SHIP MANAGEMENT, Principal
Respondents.
X----------------------------------------------X

POSITION PAPER

Comes now complainant, through undersigned counsel, unto

this Honorable Labor Arbitration Branch, most respectfully submits
his Position Paper, and respectfully states that:

PRELIMINARY STATEMENT

The complainant is an experienced seafarer, having served

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

During the complainants term of employment with herein

respondents and while the former was on the tour of his duty as
SECOND ENGINEER, he suddenly experienced severe illness
1

consisting of general body weakness, back and muscle pain,

recurring severe headaches and persistent cold and fever.

The complainant was referred and brought to a hospital in

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

Upon complainants arrival in the Philippines, he immediately

reported his condition to his local manning agency. The latter,
referred the former to their company designated physician at
Metropolitan Medical Center.

Despite

the

complainants

undergoing

various

medical

treatments and his faithful compliance with his medications, his

condition failed to resolves and thus, he filed this instant case
before

this

Honorable

Labor

Arbitration

Branch

against

the

respondents seeking, among other, total disability compensation in

accordance with the POEA-SEC provisions.

The Mandatory Conferences were conducted however, the

parties

failed

to

arrive

into

reasonable

terms

of

amicable

settlement. Thus, this Position Paper is filed pursuant to the

directive issued by this Honorable Labor Arbitration Branch.

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

Respondent CLEENE MARITIME CORPORATION (cleene for

brevity) is a domestic corporation registered in accordance with the
laws

of

the

Republic

of

the

Philippines

and

duly

licensed

employment agency by the POEA with principal address at U301303 3/F Krisambet Bldg., 1015 Zobel Roxas st., Malate, Manila. MR.
NEMESTO H. MORTEL, JR. is impleaded in the instant case in his
capacity as President of Respondent Cleene.

The herein respondents is represented by Del Rosario & Del

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

STATEMENT OF FACTS

The complainant is an experienced seafarer. He faithfully

served herein local respondents continuously and faithfully since
2009, albeit, governed by different employment contract.

In his last concluded employment contract with the local

respondents, his services as Second Engineer was re-engaged for
3

and in behalf of the local respondents principal HANG WOO SHIP

MANAGEMENT LTD., boarding the latters vessel MV RAINBOW
SPRING. The said employment has a period of twelve (12) months
with basic monthly salary of US$1,400.00 exclusive of overtime and
other benefits. The said employment contract commenced on
August 1, 2011. Copy of complainants employment contract is
hereby attached and marked as ANNEX A.

Worth

to

note

that

the

complainant

underwent

and

subsequently passed every pre-employment medical examination

(PEME) conducted to him as a requirement of respondents
employment. He was thus declared fit for sea duty. Copy of his
PEME dated July 30, 2011 is hereby attached and marked as ANNEX
B.

Sometime on February 2012 while the complainant was

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

Concerned with his medical condition, the complainant

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

However,

the

complainants

condition

worsens

and

aggravated to the point that his duty on board has already been
affected and thus, he requested for medical attention. He was

referred to a Hospital in Surabaya, Indonesia where he was

diagnosed to have suffering from Hydronephrosis, Neprolithiasis &
hypertrophy. Copy of the medical report of the said hospital is
hereby attached and marked as ANNEX C. Also, copy of
complainants seamans medical report executed by the Captain of
the vessel is hereby attached and marked as ANNEX D.

The complainant continue performing his seafaring duties on

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

On

March

25,

2012,

the

complainant

was

medically

repatriated. Upon his arrival here, he immediately reported to his

local manning agency for appropriate medical attention. The latter,
referred him to their company designated physician at Metropolitan
Medical Center for medical examinations.

Despite medical and laboratory examinations and workups,

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

The respondents refused to give herein complainant his

disability

compensation

thus;

complainant

filed

this

instant

complainant against his employer, the respondents to seek relief in

accordance with the applicable law and appropriate jurisprudence.

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

DISCUSSION

The

complainant

respectfully

submits

that

he

is

entitled to recover full permanent and total disability

compensation with the respondents under the provisions of
the POEA-SEC in the sum of US$60,000.00.

The complainant is entitled to recover his disability benefits as

provided under the POEA-SEC by reason of his illness incurred
during the existence of his contract of employment with the
respondents and while the former is performing his seafaring duties
on board.

Worth-related illness has been defined as any sickness

resulting to disability or death as a result of an occupational disease
listed under Section 32-A of this contract with the conditions set
therein satisfied1. Citing further that

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

SECTION 20. COMPENSATION AND BENEFITS

xxx
xxx
xxx
B. COMPENSATION AND BENEFITS FOR INJURY OR
ILLNESS
The liabilities of the employer when the seafarer suffers
work-related injury or illness during the term of his
contract are as follows:
1. The employer shall continue to pay the seafarer his
wages during the time he is on board the vessel;
2. If the injury or illness requires medical and/or dental
treatment in a foreign port, the employer shall be liable
for the full cost of such medical, serious dental, surgical
and hospital treatment as well as board and lodging until
the seafarer is declared fit to work or to repatriated.
However, if after repatriation, the seafarer still requires
medical attention arising from said injury or illness, he
shall be so provided at cost to the employer until such
time he is declared fit or the degree of his disability has
been established by the company-designated physician.
3. Upon sign-off from the vessel for medical
treatment, the seafarer is entitled to sickness
allowance equivalent to his basic wage until he is
declared fit to work or the degree of permanent
disability has been assessed by the companydesignated physician but in no case shall this
period exceed one hundred twenty (120) days 2. For
this purpose, the seafarer shall submit himself to a
postemployment medical examination by a companydesignated physician within three working days upon his
return except when he is physically incapacitated to do
so, in which case, a written notice to the agency within
the same period is deemed as compliance. Failure of the
seafarer to comply with the mandatory reporting
requirement shall result in his forfeiture of the right to
claim the above benefits. If a doctor appointed by the
seafarer disagrees with the assessment, a third doctor
1 Item 12, Definition of Terms, POEA-SEC.
2 Emphasis ours.
7

may be agreed jointly between the Employer and the

seafarer. The third doctors decision shall be final and
binding on both parties.
4. Those illnesses not listed in Section 32 of this
Contract are disputably presumed as work related3.
5. Upon sign-off of the seafarer from the vessel for
medical treatment, the employer shall bear the full cost of
repatriation in the event the seafarer is declared (1) fit for
repatriation; or (2) fit to work but the employer is unable
to find employment for the seafarer on board his former
vessel or another vessel of the employer despite earnest
efforts.
6. In case of permanent total or partial disability of
the seafarer caused by either injury or illness the
seafarer shall be compensated in accordance with
the schedule of benefits arising from an illness or
disease shall be governed by the rates and the
rules of compensation applicable at the time the
illness or disease was contracted4.
xxx
xxx
xxx

SECTION 32-A OCCUPATIONAL DISEASES

For an occupational disease and the resulting disability or
death to be compensable, all of the following conditions
must be satisfied:
1. The seafarer's work must involve the risks describe
herein;
2. The disease was contracted as a result of the seafarer's
exposure to the describe risks;
3. The disease was contracted within a period of exposure
and under such other factors necessary to contract it;
4. There was no notorious negligence on the part of the
seafarer.

Here, all the above-enumerated requisites for compensability

existed. The nature of complainants duties necessarily involved the
risk of having the said illness. Complainants illness consisting of the
following,

viz:

Hydronephrosis,

Neprolithiasis

&

Hypertrophy. Hydronephrosis has been defined as a condition

where one or both kidneys become stretched and swollen as a result of a
3 Emphasis ours.
4 Emphasis ours.
8

build-up of urine inside the kidney(s). 5 xxx Kidney stones are another
common cause of hydronephrosis in both men and women. Kidney stones
are small stones that are made up of various substances that form in the
kidneys. They can sometimes travel out of a kidney and into the ureters
where they can block the flow of urine. 6 The most common symptom of

hydronephrosis is a severe pain that develops in your back or side,

between your ribs and hip. On the other hand, Nephrolithiasis has
been medically defined as Kidney stones. It has been medically
determined that the cause of kidney stone, inter alia, Dietary factors

that increase the risk of stone formation include low fluid intake and
high dietary intake of animal protein, sodium, refined sugars,
fructose and high fructose corn syrup,[5] oxalate, grapefruit juice,
apple juice, and cola drinks.7 While Hypertrophy on the other hand
has been defined as Enlargement or overgrowth of an organ or part
of the body due to the increased size of the constituent cells.8

Accordingly, the illness of complainant such as kidney stone is

an illness which is acquired, among others, on poor eating lifestyle
and restraint in urination. In the case of the complainant, it is the
respondent who provides the provisions of the vessel for its journey.
The complainant has no choice of meal/food to eat but only take as
what the respondents provides for the ship hence, it is the
responsibility

of

the

respondent-employer

to

provide

the

complainant of a healthy working amenities or facilities. In addition,

5 http://www.nhs.uk/Conditions/Hydronephrosis/Pages/Introduction.aspx
6 http://www.nhs.uk/Conditions/Hydronephrosis/Pages/Causes.aspx
7 http://en.wikipedia.org/wiki/Kidney_stone
8 http://www.medterms.com/script/main/art.asp?articlekey=25464
9

his illness can be reasonably attributed to the nature of his

employment when the complainant cannot urinate on time because
of the demand of his duties to be onsite at all times. The nature of
his work and the facilities provided by the respondent for its
employees is the logical contributing factor of his illness and thus,
his illness can be logically attributed as work related illness as he
acquired it on board and during the term of his employment.

Assuming without admitting that the complainants illness is

not work-related, as it has no direct connection with the duties of
the complainant on board. The same is still compensable under
existing Jurisprudence stating that, to wit:

In the determination of compensability, what the

law requires is a reasonable work connection and
not a direct causal relation 9. It is enough that the
hypothesis on which the workmens claim is based is
probable. Probability, not the ultimate degree of certainty,
is the test of proof in compensation proceedings. (GSIS
vs. Emmanuel Cuntapay, G.R. No. 168862, April 30, 2008)
As an official agent charged by law to implement
social justice guaranteed and secured by the Constitution,
the ECC should adopt a liberal attitude in favor of
the employee in deciding claims for compensability
especially where there is some basis in the facts for
inferring a work connection with the incident. This
kind of interpretation gives meaning and substance
to the compassionate spirit of the law as embodied
in Article 4 of the New Labor Code which states
that all doubts in the determination and
interpretation of the provisions of the Labor Code
including its implementing rules and regulations
should be resolved in favor of labor (Employees
Compensation Commission vs. Sanico, 321 SCRA 268)
"Where the causes of an ailment are unknown to
and/or undetermined even by medical science, the
requirement of proof of any causal link between the
ailment and the working conditions should be liberalized
9 Emphasis ours.
10

so that those who have less in life will have more in law."
(Mora, Jr. vs. Employees' Compensation Commission, G.R.
No. 62157, Dec. 1, 1987)

Here, as we already discussed that there exist link between

the illness of the complainant and the nature of his work and his
working

environment.

reasonable

connection

has

already

established which justify our claims. There is not direct proof

needed. A reasonable and logical link between his illness and his
work is enough for one illness to be compensable.

The complainants argument is supported by several decided

Supreme Court cases:
"Where it was established that the claimant's
ailment occurred during and in the course of his
employment, it must be presumed that the nature of
the claimant's employment is the cause of the
disease."10(Republic vs. Mariano, 400 SCRA 86)

It is not required that the employment be the sole

factor in the growth, development or acceleration of
the illness to entitle the claimant to the benefits
provided therefore. It is enough that the employment
had contributed, even in a small degree, to the
development of the disease.11 (Wallem Maritime
Services, Inc. vs. NLRC (318 SCRA 623)

x x x compensability of an ailment does not depend on

whether the injury or disease was pre-existing at the time of
the employment but rather if the disease or injury is work
related or aggravated his condition. (More Maritime
Agencies, Inc. vs. NLRC, 307 SCRA 189)

But even assuming that the ailment of Faustino

Inductivo was contracted prior to his employment on board
10 Emphasis ours.
11Emphasis ours.
11

MT Rowan, this is not a drawback to the compensability of

the disease. It is not required that the employment be the
sole factor in the growth, development or acceleration of the
illness to entitle the claimant to the benefits provided
therefore. It is enough that the employment had contributed,
even in a small degree, to the development of the disease
and in bringing about his death.
xxxx
Neither is it necessary, in order to recover
compensation, that the employee must have been in perfect
condition or health at the time he contracted the disease.
Every workingman brings with him to his employment certain
infirmities, and while the employer is not the insurer of the
health of the employees, he takes them as he finds them and
assumes the risk of liability. If the disease is the proximate
cause of the employees death for which compensation is
sought, the previous physical condition of the employee is
unimportant and recovery may be had therefore independent
of any pre-existing disease. (Citing More Maritime Agencies,
Inc., et al. vs. National Labor Relations Commission, et al.,
G.R. No. 124927, 18 May 1999).

"But even assuming that the ailment of Homicillada

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

We cannot rule otherwise. Reynaldo Aniban was

healthy at the time he boarded the vessel for his foreign
employer. His medical records reveal that he had no health
problem except for a defective central vision secondary to
injury. Hence, he was certified fit to work as radio
operator by the examining physician. However, R/O Aniban
died three (3) months after he boarded Kassel due to
myocardial infarction. As aforesaid, the POEA ruled that the
cause of death could be considered occupational. x x x.
Besides we have already repeatedly ruled that death due to
myocardial infarction is compensable. In Eastern Shipping
Lines, Inc. vs. POEA, although compensability was not the
main issue, we upheld the decision of the POEA adjudging as
12

compensable death of a seaman on board the vessel of his

foreign employer due to myocardial infarction.

x x x We have already recognized that any kind

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

Conformably with this ruling, the POEA Standard Employment

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

Going further, the complainant was medically declared unfit

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

12 Emphasis ours.
13

At any rate, POEA-SEC does not exclusively provide that only

the company designated physician could assess and treat the
seafarers. Other medical practitioners chosen and preferred by the
seafarers himself could also treat and assess the seafarers. The law
recognizes the right of the seafarer to choose his own physician
especially if the physician has the trust and confidence of the
seafarer. It must be noted that the prime consideration in a doctorpatient relationship is trust and confidence. In the case of Veritas
Maritime Corp., et al v. NLRC, et al., CA-G.R. SP No. 65639,
February 27, 2003, the Supreme Court ruled as follows:

"The POEA standard contract does not provide that

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

Likewise in the case of Seagull Maritime Corporation and

Seagiant Shipmanagement Co. ltd. vs. Jaycee Dee and NLRC,
G.R. No. 165156, the Supreme Court ruled thus:

14

Thus, the POEA Standard Employment Contract

recognizes the prerogative of the seafarer to request a
second opinion, and for this purpose, to consult a
physician of his choice. In case of disagreement between
the assessments of the company-designated physician
and the seafarers doctor of choice, they may agree to
refer the seafarer to a third doctor. In such a case, the
third doctors assessment shall be final and binding on
both the employer and the seafarer.
It was therefore not erroneous at all for the NLRC
and the Court of Appeals to base their decisions on the
assessment of private respondents chosen physicians. Dr.
Meriales and Dr. Bundoc especially since their conclusion
was arrived at only after a consideration of the medical
findings of Dr. Manalang, the company-designated
physician
Significantly, Dr. Manalangs medical findings did
not differ from those of the other doctors consulted by
private respondent. Essentially, he shared their opinion
that the triple arthrodesis operation could not
guarantee the restoration of private respondents former
physical condition. His pronouncement that all that the
operation might do is to enable private respondent to
walk for daily activities with a less painful or more
comfortable left foot insinuated that private respondents
disability was permanent. His medical opinion could be
safely interpreted to mean that, as a result of the injury,
private respondent would no longer be able to perform
strenuous activities such as the rigorous duties of a
seaman.

In

the

case

of

Leopoldo

Abante

vs.

KGJS

Fleet

Management Manila, et al., G.R. No. 182430, December 4,

2009, the Supreme Court held thus:

Courts are called upon to be vigilant in their timehonored duty to protect labor, especially in cases of
disability or ailment. When applied to Filipino seamen, the
perilous nature of their work is considered in determining
the proper benefits to be awarded. These benefits, at the
very least, should approximate the risks they brave on
board the vessel every single day.
Accordingly, if serious doubt exists on the
company-designated physicians declaration of the
nature of a seamans injury and its corresponding
impediment grade, resort to prognosis of other
competent medical professionals should be made.
15

In doing so, a seaman should be given the

opportunity to assert his claim after proving the
nature of his injury. These evidences will in turn be
used to determine the benefits rightfully accruing
to him13.

In the case of Maunlad Tranport Inc., et al. vs. Flaviano

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

In the case of NYK-Fil Ship Management v. Talavera, G.R.

No. 175894, November 14, 2008, citing Seagull Maritime
Corp. v. Dee, G.R. No. 165156, April 2, 2007, 520 SCRA 109,
117-119, the Supreme Court held thus:

This provision substantially incorporates the 1996

POEA Standard Employment Contract. Passing on the
1996 POEA Standard Employment Contract, this Court
held that [while it is the company-designated
physician who must declare that the seaman
suffers a permanent disability during employment,
it does not deprive the seafarer of his right to seek
a second opinion, hence, the Contract recognizes
the prerogative of the seafarer to request a second
opinion and, for this purpose, to consult a
physician of his choice14.

13 Emphasis and underscoring ours.

14 Emphasis and underscoring ours.
16

Here, the medical assessment made by Dr. Jacinto Jr., accurately

reflects the current medical state of the complainant. It tends to
prove that the condition of the complainant has not been fully
resolved despite the lapse of the period of 120 days.

Based on the following premises, complainant respectfully

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

"Permanent disability is the inability of a worker

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

Total disability, on the other hand, means the

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

Although the company-designated doctors and

respondents physician differ in their assessments of the
17

degree of respondents disability, both found that respondent

was unfit for sea-duty due to respondents need for regular
medical check-ups and treatment which would not be
available if he were at sea. There is no question in our mind
that respondents disability was total."

Likewise, in the case of Remigio vs. NLRC, et al., G.R. No.

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

Likewise, in the recent rulings of the Supreme Court in the

case of Wallem Maritime Services, Inc.., et al. vs. NLRC and
Tiburcio dela Cruz, G.R. No. 163838, September 25, 2008, the
Supreme Court held:
Applying the foregoing definition of permanent
disability, the Court therein held that, notwithstanding the
certification issued by the company-designated physician
that in 8-10 months the seafarer therein may already work as
a pianist, the fact remains that for the past 11 to 13 months,
18

the latter had not been able to perform his customary work
as a drummer, and "this, by itself, already constitutes
permanent total disability.
The foregoing concept of permanent disability has
been consistently employed by the Court in subsequent
cases involving seafarers, such as in Crystal Shipping, Inc. v.
Natividad, in which it was reiterated that permanent disability
means the inability of a worker to perform his job for more
than 120 days. Also in Philmare, Inc. v. Suganob,
notwithstanding the opinion of the company-designated
physician that the seafarer therein was fit to work provided
he regularly took his medication, the Court held that the
latter suffered from permanent disability in view of evidence
that he had been unable to work as chief cook for more than
7 months. Similarly, in Micronesia Resources v. Cantomayor
and United Philippine Lines, Inc. and/or Holland America Line,
Inc. v. Beseril, the Court declared the seafarers therein to
have suffered from a permanent disability after taking
evidence into account that they had remained under
treatment for more than 120 days, and were unable to work
for the same period.
Thus, it is not accurate to state -- as the CA and the
NLRC did - that respondent is presumed permanently
disabled just because, after 120 days from his repatriation
due to injury, he was not declared fit to resume sea duty by
Dr. Lim. Nor would it be correct for petitioners to claim that
respondent does not suffer from permanent disability just
because at the end of an 8-month period of evaluation and
treatment, Dr. Lim had declared him fit to work. Rather, the
true test of whether respondent suffered from a
permanent disability is whether there is evidence that
he was unable to perform his customary work as mess
man for more than 120 days.15

The Court, stressed that the test to determine the gravity of

disability is the impairment or loss of ones capacity to earn and not
its mere medical significance, quoted its previous ruling in the case
of Bejerano vs. ECC (205 SCRA 598), to wit:
Permanent total disability means disablement of an
employee to earn wages in the same kind of work or work of
a similar nature that he was trained for or accustomed to
perform, or any kind of work which a person of his mentality
and attainment can do. It does not mean state of absolute
15 Emphasis ours.
19

helplessness but inability to do substantially all materials

acts necessary to the prosecution of a gainful occupation
without serious discomfort or pain and without material injury
or danger to life.

It could not be understood why respondents refused until now

complainants
although

claim

for

complainants

permanent
claim

disability

for

compensation

permanent

disability

compensation is clearly meritorious and supported by strong

physical evidence

The

complainant

respectfully

submits

that

he

is

likewise entitled to recover from herein respondents his

sickness allowance for a period of 120 days from the time of
his repatriation in the sum of US$5,600.0016
The complainant reiterates the pertinent provisions of the
POEA-SEC, viz:
3.

Upon

sign-off

from

the

vessel

for

medical

treatment, the seafarer is entitled to sickness

allowance equivalent to his basic wage until he is
declared fit to work or the degree of permanent
disability has been assessed by the companydesignated physician but in no case shall this
period exceed one hundred twenty (120) days17.

Here, as clearly indicated and mandated by the aforecited

provisions, the complainant is entitled to the said sickness
16 US$1,400 (complainants basic salary) x 4 months (120 days) =
US$5600.00
17 Emphasis ours.
20

allowance thus, it is but just to give the complainant his sickness

allowance of 120 days for having incurred and suffered his workrelated illness which under the law and existing jurisprudence,
considered as permanent and total disability.

Considering

that

the

monthly

basic

salary

of

herein

complainant as second engineer of the vessel is US$1,400.00

(exclusive of overtime and other benefits), the complainant submits
that he is entitled to receive from respondents the sum of
US$5,600.00.

The

complainant

respectfully

submits

before

this

Honorable Labor Arbitration Branch of his entitlement for

damages, specifically moral and exemplary damages under
the existing Laws.

The refusal of respondents to pay complainant his legitimate

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

refusal

to

pay

him

his

permanent

disability

compensation.

We would like to stress that the migrant workers are the

modern-day heroes of our time. Quite often they find themselves
laboring in the scorching heat and the freezing cold in foreign lands.
21

Their woes often remain unheard, their tears unnoticed. It is time

that the arms of justice reach out to them workers and cradle them
gently in her bosom18.

As the Supreme Court thus ruled "An overseas workers

constitute an exploited class.
sector of our society.

Most of them came from the poorest

They are thoroughly disadvantaged.

Their

profile shows they live in suffocating slums, trapped in an

environment of crime.

Hardly literate and in ill health, their only

hope lies in job they can hardly find in our country.

Their

unfortunate circumstance makes them easy ploy to avaricious

employer. They will climb mountains, cross the seas; endure slave
treatment in foreign lands just to survive. Out of despondence, they
will work under subhuman conditions and accept salaries below the
minimum. The least we can do is to protect them with our laws in
our land."19

Complainant has filed this complaint in order to seek justice

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

18 More Maritime Agencies, Inc. vs. NLRC, 307 SCRA 189.

19 Chavez vs. Perez, et al., G.R. No. 109808, March 1, 1999.
22

For clear bad faith of respondents in their dealings to

complainant, respondents

are certainly liable for moral and

exemplary damages in the sum of no less than P300, 000.00 each

and attorneys fees equivalent to no less than ten percent (10%) of
the total amount recovered.

Complainant suffered extreme emotional and physical pain

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

Moral damages include physical suffering, mental anguish,

fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury. Case law
establishes the following requisites for the award of moral damages:
(1) there must be an injury clearly sustained by the claimant,
whether physical, mental or psychological; (2) there must be a
23

culpable act or omission factually established; (3) the wrongful act

or omission of the defendant is the proximate cause of the injury
sustained by the claimant; and (4) the award for damages is
predicated on any of the cases stated in Article 2219 of the Civil
Code.

Respondents are likewise liable for the attorneys fees.

Considering the fact that they have refused to settle the claim
of complainant and that complainant was constrained to engage the
services of counsel and for which complainant incurred expenses by
way of attorneys fees.

The award of attorneys fees in this case is proper because

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

24

2. Where the defendant acted in gross and evident bad

faith in refusing to satisfy the plaintiffs plainly valid,
just, and demandable claim;
3. In an action for the recovery of wages of laborers and
skilled workers.

The foregoing doctrine laid down by the Supreme Court

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

Attorneys fees to be awarded by a court when its

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

In actions for recovery of wages or where an

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

PRAYER

WHEREFORE, premises considered it is most respectfully

prayed before this Honorable Labor Arbitration Branch that the

25

claims of complainants be paid jointly and severally by respondents,

as follows:
1. Permanent disability compensation in accordance
with the POEA-SEC in the amount of SIXTY
THOUSAND US DOLLARS (US$60,000.00);
2. Sickness allowance in the sum of FIVE THOUSAND
SIX HUINDRED US DOLLARS (US$5,600.00);
3. Moral Damages in the sum of THREE HUNDRED
THOUSAND PESOS (P300,000.00);
4. Exemplary
HUNDRED
and

damages in the sum of THREE

THOUSAND PESOS (P300,000.00);

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

judgment award.
RESPECTFULLY SUBMITTED.
Quezon City; August 15, 2012.

R.C.CARRERA & ASSOCIATES LAW OFFICE

Counsel for the Complainant
Unit 8 Don Alex Bldg.
Del Monte Ave. cor. West Ave.
1104 Quezon City
By:

ATTY. HEART C. LERO

IBP No. 893326/Calmana chapter/3.12.12
PTR No. 0789080/4.26.12
ROLL No. 61581
MCLE-not applicable20

-And-

20 Admitted to the Bar in 2012.

26

ATTY. REBENE C. CARRERA

Counsel for the Complainant
IBP Lifetime No. 558150; Pangasinan Chapter
PTR No. 6012090/1-4-2012; Q.C.
Roll No. 30774
MCLE Compliance No. IV-0004715;
02/28/2012; IBP Ortigas Center, Pasig City

COPY FURNISHED:
Del Rosario & Del Rosario Law Offices
15th Floor Pacific Star Building, Makati Avenue cor. Sen Gil Puyat
Avenue, Makati City.

CLEENE MARITIME CORPORATION

U301-303 3/F Krisambet Bldg.,
1015 Zobel Roxas st., Malate, Manila.
MR. NEMESTO H. MORTEL, JR.

President

RECEIVED BY:_________________
DATE: __________________

27