Republic of the Philippines

Department of Labor and Employment (DOLE)

The National Conciliation and Mediation Board
The Regional Conciliation and Mediation Branch, RCMB-NCR
In Coordination with the Philippine Association
of Voluntary Arbitrators (PAVA),
THE HONORABLE OFFICE
OF THE PANEL OF MARITIME
VOLUNTARY ARBITRATORS (MVAs)
Ground Floor, DOLE Building
Intramuros, City of Manila
---------------------------------------------------------------------------
The Honorable MVA MELODY T. MONTOYA, Chairman
The Honorable MVA WALFREDO D. VILLAZOR, Panel Member
The Honorable MV A PEDRITO FAYTAREN, JR., Panel Member

In Matter of the Voluntary Arbitration Dispute Between:

JOHN KAVEN C. GONZALES, CASE NO. : MVA-073-RCMB-NCR

Complainant, 214-09-05-2023

-versus- For: Permanent Total Disability

Benefits, Damages and
Attorneys Fees.

LYDIA MAR (PHILIPPINES), INC.1,

LYDIA MAR SHIPPING CO., SA2
And MS. BRENDA V. BALDON,3
Respondents.
x...........................................................................x

COMPLAINANT’S REJOINDER
1
With indicated address at Suite E, 11th Floor, GE Antonio Bldg., TM Kalaw St., Ermita, Manila.
2
25 Possidonous Avenue, GR 18344 Moschato, Greece
3
Jointly impleaded as a necessary Party, Ms. Brenda being no other that the responsible Corporate Officer for
Lydia Mar (Philippines), Inc.
 COMES NOW, Complainant-Seafarer, JOHN KAVEN C. GONZALES,
by and through the undersigned counsel, by way of REJOINDER, most
respectfully asseverates:

1. It is humbly submitted that the only essential issue left is whether a

Voluntary Arbitration Judgment may find for Permanent Total Disability
and award CHIEF COOK JOHN KAVEN C. GONZALES the corresponding
maximum benefits allowed in the FITCISL CBA as well as Damages and
Attorneys’ Fees.

2. We respectfully submit that JOHN KAVEN C. GONZALES suffers from

Permanent Total Disability by reason of “Hypertensive Heart Disease,
Coronary Artery Disease, s/p Coronary Andioplasty (January 2022)
with residual myocardial infarction. Heart failure with reduced
ejection fraction” and that he is very much entitled to Permanent Total
Disability Benefits as per CBA provisions on disability compensation by
reason of an accident at sea.

3. Too, it is likewise respectfully submitted that Damages and Attorneys’

Fees are recoverable as part of the judgment award.

John Kaven had timely contested the findings

of the company physician. The disparate
medical opinions have to be resolved on their
inherent merits and the courts and labor
tribunal are called not to simply embraced
the findings of the company physician as
gospel truth.
 4. At the risk of being redundant, we reiterate the view that the seafarer
has the statutory and substantial right to contest the findings and he
may seek a second opinion from a specialist of his own choosing. In such
classic impasse, where the first clash with the second, the seafarer is
obliged to contest anew the first medical report by initiating the third
doctor process in the hope that the third opinion will confirm the
second medical opinion.

5. Where the third medical opinion did not come about due to the failure
of the claimant to initiate one, the courts are bound to uphold the first
medical opinion.

6. Even if the claimant failed to seek a third opinion, the court may not
uphold the first medical opinion simply as the gospel truth. Where it is
attended by apparent bias, where the conclusions are unsupported, or
when the findings are sham and merely intended to co-opt the wishes of
the employer, there is no rule forbidding the court or tribunal from
junking the first medical opinion, and, on the basis of the inherent
merits, upheld the opinion of the private specialist.

7. It is well to point out that 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."4

8. Fil-Star Maritime Corp. v. Rosete5 formulated the classic definition of

what constitutes total disability.

4
Please see the Supreme Court Decisions in Remigio v. National Labor Relations Commission, 521 Phil. 330, 347
(2006) [Per J. Puno, Second Division) citing Philippine Transmarine Carriers v. NLRC, 405 Phil. 487 (2001) [Per J.
Quisumbing, Second Division].

5
677 Phil. 262 (2011) [Per J. Mendoza, Third Division].
 9. Thusly:

Total disability refers to an employee's

inability to perform his or her usual work. It does
not require total paralysis or complete
helplessness.

Permanent disability, on the other hand, is

a worker's inability to perform his or her job for
more than 120 days, or 240 days if the seafarer
required further medical attention justifying the
extension of the temporary total disability period,
regardless of whether or not he loses the use of
any part of his body.6

10. Conversely, it might not be amiss to state that, too, in Belchem

Philippines, Inc. v. Zafra, Jr.,7 the Supreme Court held that:

[P]ermanent partial disability presupposes

a seafarer's fitness to resume sea duties before
the end of the 120/240-day medical treatment
period despite the injuries sustained. The
premise is that such partial injuries did not
disable a seafarer to earn wages in the same kind
of work or similar nature for which he was
trained.8

6
Kindly see Sunit v. OSM Maritime Services, Inc., G.R. No. 223035, February 27, 2017 <
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/february2017/223035.pdf > [Per J.
Velasco, Third Division). See also Fair Shipping Corp. v. Medel, 693 Phil. 516 (2012) [Per J. Leonardo-De Castro, First
Division].
7
759 Phil. 514 (2015).
8
Same Case citation at page 526 thereof.
 11. We hasten to add that settled is the rule that for illness or injury
to be compensable, it is not necessary that the nature of the employment
be the sole and only reason for the injury and disability suffered by the
seafarer. Thus, in David v. OSG Ship Management Manila, Inc., the high
court did not mince words holding as follows:

It is sufficient that there is a reasonable

linkage between the disease, ailment or injury
suffered by the employee and his work to lead a
rational mind to conclude that his work may have
contributed to the establishment or, at the very
least, aggravation of any pre-existing condition
he might have had.9

12. Point in fact, the Second Medical Report gives an unembellished

account of the unenviable health condition of JC:

“Hypertensive Heart Disease,

Coronary Artery Disease, s/p Coronary
Andioplasty (January 2022) with residual
myocardial infarction. Heart failure with
reduced ejection fraction.”

13. PERFORCE, there can be no question that the disability of JC

stemmed from an ailment which arose and developed while he was
working aboard MV KEFALONIA as Chief Cook.

9
David v. OSG Ship Management Manila, Inc., G.R. NO. 197205, September 26, 2012, citing Nisda v. Sea Serve
Maritime Agency, G.R. NO. 179177, July 23, 2009, 593 SCRA 668, 699; NYK-Fil Ship Management v. Talavera, G.R.
NO. 175894, November 14, 2008, 571 SCRA 183, 198.
 In fine and without an iota of
doubt, the permanent total disability of
seafarer John Kaven C. Gonzales is
clear, apparent, unmistakable and, nay,
incontrovertible.

14. Disability claims are determined by law, the contracts and the
medical findings. To take a leaf from the Court’s myriad decisions, the
entitlement or, conversely, the non-entitlement, of a seafarer to
disability claims is not only governed by the medical findings, but by law
(the Labor Code) and the terms of the contract executed between and
among them: the POEA-SEC by incorporation 10 to the actual contract, the
Contract of Employment, Employment Agreements, and, last but not the
least, the Collective Bargaining Agreement, if there is any in effect and
governing the parties in the course of the employment.

15. For this reason, Courts and labor tribunals are not bound by the
medical findings of the company physician such that the repetitive
arguments of manning agencies that the company-designated physician
is more controlling than any other medical findings has become passé.
The more correct rule is that the courts and labor tribunals are not
bound by the medical findings because they are ordained to look and

10
That all provisions of the POEA-SEC are standard and deemed integral part of any contract of employment
binding the parties to at least comply with barest minimum terms and conditions deemed acceptable by law, and
case law and as updated by timely revisions made by the regulatory body, the POEA-SEC. This is to ensure that the
minimum terms and standards for all contract of employment, minimum labor standards and terms of
employment, are adhered to by the parties to the contract and, obviously, on the consideration and concern that
the worker is not put into disadvantage. The Court has aptly stated:

Laws are deemed incorporated in employment

contracts and the contracting parties need not repeat
them. They do not even have to be referred to. Every
contract, thus, contains not only what has been
explicitly stipulated, but also the statutory provisions
that have any bearing on the matter.
 inquire as to the real condition of the seafarer. In which case, the rule of
thumb is to delve and weigh the inherent merits of the contentious
medical opinions. They are to be appraised based on their inherent
merits.

16. The rules require that the medical assessment must be final,
complete and definitive and, as currently stands, adhere to the 120/240
window evolved in Kestrel and Vergara and the twin requirements in
Dario Carcedo vs Maine Marine. Failure and shortcomings from any of
the foregoing requirements, perforce, the law is deemed to effectively
step in to fill the void, characterizing whatever disability that the
seafarer has, into one that is Permanent and Total. The requirements
are deemed built-in safeguards to dissuade a situation where the
company doctor can simply defeat the claims if the time to issue when is
entirely dependent on him. In which case, the doctor may just simply sit
back idly and issue no medical report at all, all the while putting the
seafarer to an interminable waiting game.

17. The seafarer has the statutory and substantial right to contest the
findings and he may seek a second opinion from a specialist of his own
choosing. In such classic impasse, where the first clash with the second,
the seafarer is obliged to contest anew the first medical report by
initiating the third doctor process in the hope that the third opinion will
confirm the second medical opinion.

18. Where the third medical opinion did not come about due to the
failure of the claimant to initiate one, the courts are bound to uphold the
first medical opinion. However, even if the claimant failed to seek a third
opinion, the court may not uphold the first medical opinion simply as
the gospel truth. Where it is attended by apparent bias, where the
 conclusions are unsupported, or when the findings are sham and merely
intended to co-opt the wishes of the employer, there is no rule
forbidding the court or tribunal from junking the first medical opinion,
and, on the basis of the inherent merits, upheld the opinion of the
private specialist.

19. In their insistence that there must be strict adherence to the

POEA-SEC SCHEDULE, Respondents loses sight of the Labor Code
provisions.
20. No disrespect to the Respondents, but the POEA-SEC CANNOT
BE READ IN ISOLATION and in total disregard of the basic law---the
Labor Code.

21. The High Court has unwaveringly applied the Labor Code concept
of permanent total disability to the case of seafarers. In Philippine
Transmarine Carriers v. NLRC, seaman Carlos Nietes was found to be
suffering from congestive heart failure and cardiomyopathy and was
declared as unfit to work by the company-accredited physician.

Here, JC was seen as outpatient for a

period of MORE THAN 120 DAYS without
sufficient justification to extend the period,
the company doctors having done no
significant action but merely going through
the motions. No definitive, complete and final
assessment was given, furnished and
explained to him.
22.Applying the foregoing rules in the present case, the company-
designated physician was unable to timely issue a final assessment. The
seafarer was repatriated last February 12, 2022. The Certificate of Final
Medical Assessment issued by Dr. Nicomedes Cruz was on June 17,
2022. Crystal, more than 120 days have gone by.

23. We cannot simply agree that the haphazardly issued Certificate of

Final Assessment made by the company-designated doctor, is the
Medical Report that is definitive, complete and final as contemplated by
the rules.

24.To our mind, the said disability assessment was an interim one because
JOHN KAVEN, in fact continued to require medical treatments and
management that extended even after his treatment with the CDP and
that he was still being prescribed heart medications by Dr. Antonio
Pascual way beyond six months after repatriation.

25. Verily, he was certainly still under total disability at that time and,
even at present, he has not been able to resume seafaring work of any
kind.

26. Certainly, the unfitness and continuing disability is clear and

apparent. No amount of legal sophistry could controvert this point.
Following the Court’s rulings in Vergara and Kestrel, since John Kaven’s
further medical treatment duration beyond the 120 day period was not
sufficiently justified, his total and temporary disability was unduly and
unnecessarily extended.
 Indeed, the schedule of disabilities
in the CBA, if there is one, or the POEA-
SEC, should be the primary basis for the
determination of a seafarer’s degree of
disability. However, the POEA-SEC and
the CBA cannot be read in isolation
from the Labor Code and the AREC.
Otherwise, the disability rating of the
seafarer will be completely at the mercy
of the company-designated physician,
without redress, should the latter fail or
refuse to give one.

27. Here, the company-designated physician failed to give a definitive

assessment on the disability beyond the extended temporary disability
period, after the 120-day period but less than 240 days. There was no
Medical Certificate stating a disability or fit to work assessment and,
most importantly, duly explained to the complainant. In the absence of a
medical report that is definitive and final as required by law, the
disability, to all intents and purposes has become permanent and total.

28. By operation of law, therefore, John Kaven Gonzales’ total and

temporary disability lapsed into a total and permanent disability. 11

29. What is more and of most vital significance, JOHN KAVEN

cannot resume his customary work as chief cook since he was
rendered ineffective and forbidden to carry out strenuous and
physical hard work due to his grievous CORONARY ARTERY DISEASE.

11
Libang v. Indochina Ship Management, Inc., G.R. No. 189863, 17 September 2014.
 The POEA-SEC provisions 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.

30.In fact, it allows a third opinion in case the seafarer’s 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.

31. Verily, the law has already stepped in and whatever disability
Chief Cook John Kaven Gonzales had, by legal fiction, has now been
transmogrified to a permanent and total one. Without doubt, this is
irrefutable from the records

PRAYER
FOR AFFIRMATIVE RELIEFS

WHEREFORE, BECAUSE OF THE FOREGOING PREMISES, it is

respectfully prayed that the Complainant’s claim for TOTAL AND
PERMANENT DISABILITY BENEFITS will now please be GRANTED in favor
of Complainant.
 ACCORDINGLY, it is hereby prayed that JUDGMENT be rendered
declaring Complainant as totally and permanently disabled and herein
Respondents be made to pay jointly and severally the following amounts:

1. ONE HUNDRED THOUSAND US DOLLARS (US$ 100,000.00)

representing payment of Complainant’s Total and Permanent
Disability benefits,

2. FIFTY THOUSAND PESOS (Php50,000.00) by way of moral

damages, and

3. TEN PERCENT (10%) of the total judgment award as Attorneys’

Fees.

OTHER RELIEFS, just and equitable under the premises, are likewise
prayed for.

RESPECTFULLY SUBMITTED this 8th day of September 2023 at the

City of Manila, Philippines.

A. M. BURIGSAY LAW OFFICE

& ASSOCIATES
Counsel for the Complainant
Room 310, Trinity Building
Kalaw Avenue, Ermita,
Manila City

By:

ARNOLD M. BURIGSAY
IBP No. 260805 January 5, 2023
PTR NO. 0862689
 January 4, 2023; Manila
Roll No. 43265
MCLE No. VII- 0028015
April 14, 2023; Pasig City
Tel No. 564-49-00/6646124
amburigsaylaw@gmail.com

Copy Furnished:

ATTY. RUBEN JOSE DEL ROSARIO, JR.

DEL ROSARIO AND DEL ROSARIO LAW
Counsel for the Respondents
Del Rosario Law Center
Bonifacio Drive
Taguig City, Metro Manila

EXPLANATION:
Due to distance and for lack of office personnel to effect personal
service, a copy of the foregoing COMPLAINANT’s REJOINDER was served by
registered mail to the respondents’ counsel.
.

ARNOLD M. BURIGSAY