Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Sub-Regional Arbitration Branch
X Iligan City GABRIEL MEJORADA, Complainant, -versusMATAGUMPAY MARITIME INC. and/or NOIMI L. ZABALA, Respondents. x----------------------/ NLRC CASE No. RABX (M)04-10755-09
COMPLAINANT, through the undersigned counsel, unto this Honorable Office, most respectfully submits this position paper, and in support thereof, hereby states that:
The standard employment contract for seafarers was
formulated by the Philippine Overseas Employment Agency (POEA) pursuant to its mandate under Executive Order No. 247 to "secure the best terms and conditions of employment of Filipino contract workers and ensure compliance therewith" and to "promote and protect the well-being of Filipino workers overseas.1 It 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
MAGSAYSAY MARITIME CORP. vs. JAIME M. VELASQUEZ, G.R. No. 179802, November 14, 2008
The POEA approved Contract of Employment3 entered into by and between the complainant and the respondents contained the following terms and conditions: Duration: Nine (9) months Position: First Assistant Engineer Basic Monthly Salary: US$ 1. 2006. No. co-respondent YEH SHIPPING CO.2
STATEMENT OF FACTS AND OF THE CASE
Since year 1978. The PEME showed. complainant was again engaged by MATAGUMPAY for its foreign principal. 28 February 2001. B-1 to B-4” are copies of the Pre-employment Medical Examination and its supporting documents which form an integral portion hereof. complainant had already been engaged by respondent MATAGUMPAY MARITIME. 353 SCRA 47. as a First Assistant Engineer. 4 Attached hereto as Annexes “B. 123891. On July 4.and applied fairly. that complainant was not suffering any high blood pressure or any heart trouble. Teresita F.. Gonzales. among others.
Philippine Transmarine Carriers v. 3 Attached hereto as Annexes “A. INC.00 per month Point of hire: Manila. then can its beneficent provisions be fully carried into effect. NLRC. (“MATAGUMPAY” for brevity) as a seafarer. Complainant’s 28-year career as a seafarer had been devoted exclusively to MATAGUMPAY.00 FOT 105 hours Vacation Leave with Pay: US$ 306.00 Hours of work: 40 hours per week Overtime: US$ 855. reasonably and liberally in their favor. G. complainant was made to undergo a Pre-employment Medical Examination4 (PEME) and was found to be fit to work by the attending physician Dr.
. LTD. A-1 to A-10” are copies of Contract of Employment which form an integral portion hereof..00 per month Before the said contract was executed.149. Philippines Subsistence Allowance: US$ 44.R.
complainant was diagnosed to have Right Hemiparesis. Thereafter. while complainant was on his duty. After his duty. 6 Supra. immediately after having his routine inspection around the engine room.
Attached hereto as Annex “C” is a copy of the Master’s Report which forms an integral portion hereof. on November 27. Gout. he went back to his room and requested the Messman to massage his right arm for therapy.
.6 When the vessel reached Australia.5 However. Luckily. D-1 and D-10” are copies of the Medical Reports of Health Watch Clinics. he started to feel that his right arm was numbed/weakened but just ignored it thinking that it was just a normal numb. 2006. complainant suddenly felt dizzy and eventually collapsed in the Engine Control Room. 2006. complainant departed from the Philippines and boarded the vessel MV Ken Ten in Japan on the same day. 2006 to December 5. From December 14-22. Accordingly. 2006. 2006. 2006.On July 14. his shipmates were able to revive him. All the medical records of complainant while he was in Delos Santos Medical Center are all in the possession of MATAGUMPAY.
Attached hereto as Annex “D. complainant was referred to a company-designated physician at the Delos Santos Medical Center for further medical care and treatment. complainant was brought to the Health Watch Clinics and underwent several medical examinations from November 30.7 For this reason. 2006. On November 25. complainant was repatriated to the Philippines on December 8. Hypertension and Elevation of inflammatory markers.
Attached hereto as Annex “E’ is a copy of Dr. On said occasion.complainant went back home to his residence in the Municipality of Maigo. But. During said visit. Zabala for brevity). Acute Gastritis and Status Post Stroke. together with his son. sometime in October 2007. in order that she could process complainant’s benefits. complainant’s wife asked Mr.000. nephew and a company-designated physician visited complainant at his house. Andot’s Medical Findings.8 Subsequently. Gout. Bob Andot. Zabala for the copy of complainant’s medical records during his confinement in Delos Santos Medical Center.
. However. the owner/president of MATAGUMPAY. Mr. until now MATAGUMPAY has yet to pay complainant’s disability benefit. Bob C. On January 17. Said physician made the following diagnosis: Transient Hypotension. Lanao del Norte and was attended by Dr. Relying on the sweet assurances and promises of Mr. At present. complainant was admitted to the ANDOT MEDICAL CLINIC in Bacolod. respondents through Noimi Zabala (“Mr. much to their dismay. complainant is still suffering partial paralysis and had not been able to resume work as a seafarer. complainant and his wife felt secured that he will eventually receive his disability benefits. Zabala. Zabala with the company physician assured complainant and his wife that they will receive a Grade 6 disability benefit which is 50 % of US$ 50. Lanao del Norte. Zabala told her that there was no need for her to have the copies thereof because MATAGUMPAY will be the one who will process complainant’s benefits.
The claim for disability benefits was properly rejected as Mr. 2009. an NGO based in Iligan City. the CALL FOR JUSTICE received a letter10 from the lawyers of MATAGUMPAY. it was found that Mr. Mejorada’s illness is not work-related. Under Section 20-B of the POEA contract for an illness/injury to be compensable. He was likewise paid his full sickness allowance. such must be (a) work-related. Thus. Mejorada knew of his illness for the past 4 years taking Neobloc and Delehex as maintenance. In the instant case. complainant went to the CENTER FOR ALTERNATIVE LEGAL FORUM AND JUSTIC (CALL FOR JUSTICE).
Attached hereto as Annexes “G – G-1” are copies of the letter sent by Respondents’ counsel to Call For Justice. 2. Mejorada under the POEA Contract. to seek legal advice. complainant filed the instant complaint before this Honorable Office on April 21. complainant was starting to feel anxious and suspicious as his right to claim for the disability benefit is about to prescribe.Almost three years has passed. INC.”
Disappointed with MATAGUMPAY’s response on his claim. Mr. the CALL FOR JUSTICE sent an invitation letter to MATAGUMPAY for a possible mediation9. sometime in January 2009. pertinent portions thereof are as follows:
“1. Mejorada is not entitled to any disability benefits under the POEA Contract. Mejorada’s illness was found to be pre-existing and not work-related. 2009.
Attached hereto as Annex “F’ is a copy of the Invitation Letter.
. On February 3.. the company-designated physician has decalred that Mr. and (b) suffered during the term of his employment contract. Due to the foregoing. Further. Sometime in April 2009. he was afforded all the necessary medical treatment and assistance. When complainant was diagnosed with his injury/illness. Our client has completely fulfilled all its obligations to Mr.
it is provided that for an illness/injury to be compensable.
. WHETHER OR NOT COMPLAINANT SICKNESS ALLOWANCE.
WHETHER OR NOT RESPONDENTS ARE LIABLE FOR MORAL AND EXEMPLARY DAMAGES TO THE COMPLAINANT. As a consequence. a mandatory conference was held for a possibility of amicable settlement and determination of other matters. no agreement was reached or amicable settlement was entered into.) work related. this position paper.
I. COMPLAINANT IS ENTITLED TO DISABILITY BENEFITS Under the 2000 POEA Standard Employment Contract. 2009. this Honorable Office issued an order directing the parties to submit their respective position paper.
1. and (b) suffered during of his employment contract. Hence. and WHETHER OR NOT COMPLAINANT IS ENTILED TO RECOVER ATTORNEY’S FEES FROM RESPODENTS.
WHETHER OR NOT COMPLAINANT DISABILITY PAY. such as but not limited to the simplification of issues. such must be (a.On May 11.
IS ENTITLED TO A
THUS. It is not necessary. In the case of NYK-FIL SHIP MANAGEMENT INC. claimed that complainant is not entitled to disability pay because complainant’s illness was found to be pre-existing and not work related. 2009. November 14. It is indeed safe to presume that. Assuming arguendo that complainant’s illness was preexisting. if indeed it was pre-existing at the time of his employment. THERE IS A REASONABLE CONNECTION BETWEEN RESPONDENT’S ILLNESS AND THE NATURE OF HIS JOB. ALFONSO T. and while the employer is not the insurer of the health of his employees.”
As reflected in the Master’s Report. in order for an employee to recover compensation. he takes them as he finds them. the arduous nature of Hormicillada's employment had contributed to the aggravation of his injury. and assumes the risk of having a weakened condition aggravated by some injury which might not hurt or bother a perfectly normal.
FIRST. complainant had been constantly exposed to rapid variations of
. G. No. complainant’s duty as a First Assistant Engineer requires him to have a daily routine inspection inside the vessel’s engine room. the same does not deprive complainant from being entitled to disability benefits. Every workman brings with him to his employment certain infirmities. or that he be free from disease. Therefore. the Supreme Court.
Respondents. in their letter dated April 13. IT IS WORK RELATED. In line with his duty. at the very least. vs.The abovementioned requisites are present in the instant case. expounded the nature of a “work-related injury or illness”. 175894. 2008. to wit:
“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. TALAVERA. it is but just that he be duly compensated for it. that he must have been in perfect condition or health at the time he received the injury.R. healthy person.
Complainant started with MATAGUMPAY way back in 1978. complainant was a healthy and an efficient seafarer which was the main reason until why the respondents latter suffered continued a stroke to engage was complainant and
subsequently repatriated in 2006. COMPLAINANT SUFFERED A STROKE DURING THE TERM OF HIS EMPLOYMENT.
SECOND. thus. there can be no other logical explanation as to where did complainant acquire his illness.temperature. Back then. from the excessive heat inside the engine room to the cold weather in the open sea. it can be deduced that the arduous nature of complainant’s duty caused his illness or at least aggravated any pre-existing condition he might have had. the
attending physician pronounced him to be fit to work and it also showed that before complainant boarded the vessel. but only from his employment with the respondents. and is thus work-related. This kind of work environment has caused complainant to suffer a stroke due to hypertension. he was not suffering any high blood pressure or any heart trouble. Thus. Besides. when complainant underwent his PEME. No doubt
With respect to the second requisite. as in the above cited case. Worthy of note is the fact that complainant spent his entire career as a seafarer with respondent MATAGUMPAY. This is evidenced by the Master’s Report which reflected that complainant suffered a stroke due to hypertension while he was in the engine room. there is no question that complainant suffered his illness during the term of his employment with respondents. Since complainant had only one employer in his entire career which was the respondent.
July 8. or work of similar nature that he was trained for or accustomed to perform. mainly because his illness has caused him partial paralysis. What is worse. it is clear that complainant’s illness is compensable under the 2000 POEA Standard Employment Contract.R. As stated
G. it is posited that it is total and permanent. complainant is still under treatment and medications. November 14.complainant acquired his illness in the course of his employment with respondents because he was declared to be healthy prior to his departure. The Labor Code concept of permanent total disability in the case of seafarers should not be understood more on its medical significance but on the loss of earning capacity. Cadiz11 held that permanent disability is the inability of a worker to perform his job for more than 120 days. No. Permanent total disability means disablement of an employee to earn wages in the same kind of work. VELASQUEZ.R. complainant still has difficulty of moving the right portion of his body which he suffered during the stroke that occurred while he was performing his duty with the respondents. JAIME M. or any kind of work which a person of his mentality and attainment could do. 145093.
With regards to the degree of complainant’s disability.12 In the case at bar. No. he would not have been allowed to board the vessel. vs. In addition.
COMPLAINANT’S DISABILITY IS TOTAL AND PERMANENT. Until now. 2008
. complainant has no longer able to resume his work as a seafarer from the time he was repatriated. 2003 MAGSAYSAY MARITIME CORP. regardless of whether or not he loses the use of any part of his body. In view of the above premises. G. Had he not been found fit to work prior to his departure. the Supreme Court in GSIS v. 179802.
subject to the right of the employer to declare within this period that a permanent partial or total disability already exists. complainant could no longer able to perform the same work as he used to before his repatriation. the liabilities of the employer when the seafarer suffers work-related injury or illness during the term of his contact include. then the temporary total disability period may be extended up to a maximum of 240 days. Mejorada’s Medical Certificate. However.000. COMPLAINANT IS ENTITLED TO A SICKNESS ALLOWANCE Under the 2000 POEA Standard Employment Contract. there was no such declaration made by the company-physician that has been communicated to the complainant regarding the degree of his disability. II. 000 x 120% = US $ 60. In fact. a 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. Vicente P. he is entitled to a Grade 1 disability benefit which is computed as follows: US $ 50. Mejorada’s Medical Certficate13. Such being the case. among others. if the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention. complainant’s disability is considered total and permanent and because of which. all medical records of the complainant while he was confined in Delos Santos Medical Center are still in the possession of the
Attached hereto as Annex ‘H” is Dr.in Dr.
In this case.
149. Respondents’ deliberate act of misleading complainant clearly shows bad faith on their part which almost causes complainant’s right to claim to be barred by prescription.respondents.
III. complainant’s right to claim would have already been prescribed this year. the sickness allowance of the complainant should be computed at the maximum period which is 240 days or 8 months. As a consequence. much to his dismay. Hence. IV. complainant is still under treatment and medication. an award of moral and exemplary damages should be given in
. The deceptive promise of the respondents was really intentional in order to defeat complainant’s right to claim. All the while. Were it not for the timely advised of the Call For Justice to file this instant complainant. complainant received a letter from the respondents recently denying his claim for disability benefit.
It has been almost three years now that respondents made complainant to believe that they were just processing his disability benefit. favor of the complainant. RESPONDENTS ARE LIABLE FOR ATTORNEY’S FEES For this reason. RESPONDENTS ARE LIABLE FOR DAMAGES
RESPONDENT ACTED IN BAD FAITH. Up to now. complainant had trusted respondents’ sweet promises that he is going to receive his disability benefit. 192 at its peso equivalent at the time of payment. But. the computation is as follows: US $ 1.00 as his basic wage multiplied by 8 months (240 days) = US $ 9.
and (4) Attorney’s fees equivalent to 10% of the judgment award.
WHEREFORE. premises considered. G. 192 at its peso equivalent at the time of payment. NATIONAL LABOR RELATIONS COMMISSION.Under Article 2208 of the New Civil Code.
BERNARDO REMIGIO vs. (2) US $ 9. (3) P500.000 at its peso equivalent at the time of payment. representing disability benefits corresponding to Total Permanent. No. Other reliefs which are just and equitable are likewise prayed for.000. 2006
. attorney's fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer's liability laws. 159887.R. representing moral and exemplary damages. Attorney's fees are also recoverable when the defendant's act or omission has compelled the plaintiff to incur expenses to protect his interest. representing Sick Wage allowance. respondents’ refusal to give
complainant’s disability benefit has compelled the complainant to hire the services of the undersigned counsel for a fee in order to protect his right. April 12. it is hereby respectfully prayed for that a judgment be rendered finding for complainant and ordering respondents to jointly and severally pay the former the following: (1) US$60.14 In the instant case.
I. Iligan City
Copy furnished: Del Rosario and Del Rosario Counsel for the Respondents 15/F Pacific Star Building Makati Ave. QUIMCO
Counsel for the Complainant IBP No. 35377 05/28/1988 MCLE COMPLIANCE No.
ATTY. Iligan City after having
. 716098 12-24-08 Roll No. of legal age. QUIMCO
Republic of the Philippines City of Iligan ) )S. married. Philippines. Rosario heights. Filipino.. 1200 Makati City
A copy of this position paper is being served to the other parties through registered mail due to geographical distance between Iligan City and Makati City. cor. Tubod.. Sen. Gil Puyat Ave. Inc.. and a resident of Dona Maria Subdivision. RM 202 Monsanto Bldg.S.Done this ___ day of August 2009.
ATTY. VERMIN M. II-0016426 CALL FOR JUSTICE. VERMIN M.VERMIN M. Don Pedro Celdran St. in Iligan City.
VERMIN M.S. 3.
AFFIDAVIT OF SERVICE
. Affiant is personally known to me. We have hereunto set our hands this ____ day of August 2009. Upon the instruction and initiative of my client.
I am the counsel of the complainant in the aboveentitled case. and I affirm the authenticity of the documents attached thereto as well as the veracity of the allegations therein are based on the personal knowledge of my client. do hereby depose and say.
Republic of the Philippines ILIGAN CITY
) ) S. Philippines. THAT:
1.been duly sworn to oath in accordance with law. I prepared the foregoing position paper. QUIMCO SUBSCRIBED AND SWORN to before me this ___th day of August 2009. in Iligan City.
IN WITNESS WHEREOF. Philippines. in Iligan City. 2.
plainly addressed to the parties. Kerth Ablanque Affiant SUBSCRIBED AND SWORN to before me this ______ day of August 2009 at Iligan City.. Iligan City. 3. Tubod. Don Pedro Celdran St. et. as evidenced by the attached Registry Receipt with Registry Receipt Numbers below. IN WITNESS WHEREOF. cor.. depose and say:
1. after having been duly sworn to oath. That the address and the respective registry receipt are: Name of Addressee R. Gil Puyat Ave.
. Sen. Philippines. Matagumpay Maritime Inc. affiant is personally known to me.
Del Rosario and Del Rosario 15/F Pacific Star uilding Makati Ave.I. That I am executing this affidavit of service to attest to the truth of the foregoing. particularly that copies of herein position paper was sent to the above addressee by registered mail during the date specified. _______ day of August 2009. Vermin Quimco. RABX(M)-04-10755-09 2.R. al. I served a copy of the following pleading by Registered Mail: NATURE OF PLEADING/PAPER
In Re: Mejorada vs. That on _____________. Rosario heights. as legal staff of Atty... with postage fully prepaid. with the instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. Philippines. Iligan City. I have hereunto set my hand this.. whose office address is situated at RM 202 Monsanto Bldg. That I served said position paper together with its annexes by depositing a copy in the post office in a sealed envelope. No. NLRC Case No. 1200 Makati City ___________________
4.. KERTH ABLANQUE.