Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Quezon City

SECOND DIVISION
BERTHIER P. ECULLA, OFW-SEA BASED
Complainant-Appellee, NLRC LAC No. 10-000841-12
NLRC Case No. (M) NCR-11-17417-11
-versus-

EPSILON MARITIME SERVICES, INC., SAFETY

MANAGEMENT SERVICES SA., CAPT. LIBERATO CAPAYAS,
Respondents-Appellants,
x-----------------------------------------x

MOTION FOR RECONSIDERATION

COMPLAINANT-APPELEE BERTHIER P. ECULLA by

undersigned counsel, within the period provided by law and the
rules, respectfully moves for reconsideration of the Decision dated
29 November 2012 of this Honorable Commission (2 nd Division)
which was received by undersigned counsel on 21 December
2012, by stating as follows –
TIMELINESS OF FILING THIS MOTION FOR
RECONSIDERATION
Undersigned counsel received on 21 December 2012 the
abovementioned Decision dated 29 November 2012, the
dispositive portion of which reads –

“WHEREFORE, PREMISES CONSIDERED, the Decision of the

Labor Arbiter dated January 31, 2012 is MODIFIED in that the
award of disability benefits should be US$13,302.63.”
 “The award of attorney’s fees is deleted considering that
there was no bad faith on the part of the respondents in denying
the claim for full disability benefits.”

“SO ORDERED.”

Complainant-appellee therefore ordinarily has ten (10) days

or until 31 December 2012 within which to file this Motion For
Reconsideration pursuant to the 2011 NLRC Rules of Procedure.
However, since 31 December 2012 and 01 January 2013 are legal
holidays, complainant-appellee had until the next working day, or
on 02 January 2013 within which to file this Motion for
Reconsideration.

This motion is therefore timely filed as it is hereby filed

today, 02 January 2013, by registered mail due to distance and
unavailability of delivery personnel.

GROUNDS FOR RECONSIDERATION

I.

THIS HONORABLE COMMISSION (SECOND DIVISION)

COMMITTED A REVERSIBLE ERROR WHEN IT DISREGARDED
THE FINDINGS OF FACT BY THE HONORABLE LABOR
ARBITER THAT THE TREATMENT PERIOD OF COMPLAINANT-
APPELLEE LASTED AND WILL ACTUALLY CONTINUE FOR
MORE THAN 240 DAYS AS IT HAS BEEN ACTUALLY
OBSERVED AND DECLARED BY THE COMPANY DESIGNATED
PHYSICIANS THEMSELVES. HENCE, COMPLAINANT-APPELLEE
IS ENTITLED TO TOTAL PERMANENT DISABILITY BENEFITS;

II.
 THIS HONORABLE COMMISSION (SECOND DIVISION)
COMMITTED A REVERSIBLE ERROR WHEN IT DISREGARDED
APPLICABLE JURISPRIUDENCE AND THE VERY FACT THAT
INDEED NO PROFIT MINDED EMPLOYER WILL HIRE
COMPLAINANT-APPELLEE IN HIS PHYSICAL CONDITION
WHERE HE HAS TOTAL AND COMPLETE LOSS OF USE OF HIS
RIGHT INDEX FINGER, A PART OF HIS BODY
INDISPENSABLY USED IN THE PERFORMANCE OF HIS JOB
AS A “GENERAL PURPOSE UTILITY SEAFARER”;

III.

THIS HONORABLE COMMISSION (SECOND DIVISION)

COMMITTED A REVERSIBLE ERROR WHEN IT DELETED THE
AWARD OF ATTORNEY’S FEES INSPITE OF THE CLEAR FACT
THAT IT WAS RESPONDENT-APPELLANTS’ WRONGFUL
REFUSAL TO PAY THE TOTAL PERMANENT DISABILITY
COMPENSATION OF COMPLAINANTAPPELLEE WHICH
COMPELLED THE LATTER TO LITIGATE IN ORDER TO
PROTECT HIS RIGHTS AND INTERESTS.

1. The first two grounds are hereby jointly discussed as they are
anchored on the findings of facts of the Honorable Labor Arbiter.
Such findings of facts are in accord with the undisputed facts as
well as the applicable jurisprudence and legal principles
hereinafter set forth.

With all due respects, complainant-appellee submits that the

findings of facts and the ensuing ratiocinations of the Honorable
Labor Arbiter are the ones in accord with the undisputed evidence
and settled jurisprudence on disability compensation cases.

The pertinent and correct findings of facts of the Honorable

Labor Arbiter are found on pages 5, 6, and 7 of the appealed
Decision in NLRC NCR OFW Case No. 11-17417-11. It is therein
stated as follows –

“In this case, Dr. Nicomedes Cruz, companydesignated

physician, submitted his assessment on December 16, 2011,
more or less 210 days from May 12, 2011, the date when
complainant reported in compliance with the post
employment medical examination. Thus, by merely
considering the above-mentioned period, it cannot be denied
that it is within the 240-day rule.”

“This office, however, observes that the above-cited

rule does not fall squarely in this case. A perusal of the
records reveal that per respondents’ 12th Medical Report
dated November 09, 2011 (Annex 14, Respondents’ Position
Paper), it was stated that complainant started his PT
sessions and will have PT 3x per week. Per Medical Report
dated November 16, 2011 of Dr. Narciso SJ Fernandez
(Annex J, Complainant’s Position Paper), of the RMR PT/OT
Clinic, recommendation was made for complainant’s
continuous rehabilitation due to the findings of having poor
progressive and with remarks ‘full progressive’.”

“From the foregoing, respondents’ companydesignated

physician, Dr. Nicomedez Cruz issued on December 16, 2011
his assessment finding complainant’s disability to be partial,
i.e., Grade 11, without finally giving the medical report on
the result of his therapy which took place between
November 16, 2011 to December 2011. Let it be stressed
that per Dr. Fernandez’s above-mentioned recommendation,
complainant’s rehabilitation should be continuous due to
‘poor progressive’, hence, when the disability assessment
was rendered, there is an absence of final diagnosis of his
therapy or rehabilitation. And for respondents failure to pay
his total permanent disability, complainant sought the
medical opinion of an independent physician, Dr. Nicanor F.
Escutin, Orthopedic Surgeon, who, per Disability Report
December 27, 2011, conducted the following pertinent
physical examination:”

xxxxx xxxxx xxxxx

“FINAL DIAGNOSIS:
- MALUNITED, PROXIMAL PHALANGE, 2ND DIGIT
RIGHT HAND
- STATUS-POST, OPEN-REDUCTION WITH BONE
PLATING, PROXIMAL PHALANGE, 2ND DIGIT RIGHT
HAND
- ANKYLOSIS, 2ND DIGIT, RIGHT HAND”

“DISABILITY RATING:”

“x x x x His 2nd finger was aligned but he cannot

move it. He is unable to flex and extend his 2nd finger. He
cannot hold objects properly for a long time. He underwent
physical therapy but there was no improvement on the
movement of his 2nd finger. His physiatrist gave him a poor
prognosis on his end finger which means he will have
difficulty in moving it. As a seaman, he should have a
hundred percent functioning hands, right and left. If one of
his hands cannot function, he is not physically capable of
performing the strenuous and vigorous activities of a
seaman.”

“He is given PERMANENT DISABILITY. He is UNFIT TO

WORK as a seaman in whatever capacity.”

(Italization and underscoring supplied for emphasis.)

 “Records show that the respondents’ failure to submit
proof that complainant’s therapy or rehabilitation was
successfully finished before the issuance of the disability
grading casts doubt on their findings that the latter’s injury
was correctly assessed to be partial in nature, more so, that
when it was issued, complainant was not deployed by the
respondents to resume his work as a seaman nor was
offered a new contract of employment.”

“Moreover, the prolong period of medical treatment of

the complainant should not be solely attributable to the
latter’s failure to report for medical check-up on July 29,
2011, as directed by Dr. Nicomedez Cruz. It bears stressing
that complainant reported for post medical examination on
May 12, 2011, or within 72 hours, but respondents took one
month to refer him for medical treatment at NGC Medical
Clinic.”

“Corollary thereto, complainant’s disability cannot be

said to be partial, but total and permanent. Anent
complainant’s claim for application of the Collective
Bargaining Agreement, this office considers the Cyprus
Collective Bargaining Agreement for Seafarers on board
Cyprus Cargo and Tanker Vessels for Cyprus beneficially
owned vessels in view of the respondents’ undisputed
contention that MV Pedhoulas Leader bears the Cyprus flag.
Thus, complainant is entitled to US$89,100.00.”

“For instituting this case in order to protect

complainant’s rights and interests, he is awarded attorney’s
fee equivalent to ten (10%) percent of the total judgment
award pursuant to Article 111 of the Labor Code.”
 The Honorable Labor Arbiter’s findings of facts which were
carefully gathered from the records of the above-captioned case,
clearly show that the partial impediment grade given by the
company-designated physician was haphazardly issued in order to
put a semblance of finishing the treatment, therapy or
rehabilitation of complainant’s injury within the 240-day period. It
is however very clear that the treatment, rehabilitation and
therapeutic requirements of complainant-appellee must continue
beyond the said 240-day period. Hence, he is totally and
permanently disabled in the eyes of the law.

The thrust of the Honorable Labor Arbiter’s findings was

correctly leaned towards the actual state of lifetime incapacity of
the complainantappellee to perform again his customary job as
an “all-purpose utility seaman” on-board respondents’ vessels or
any other profit-minded maritime employers for that matter. This
is in accord with applicable jurisprudence which states that –

“x x x x, we have consistently ruled that disability is

intimately related to one’s earning capacity. The test to
determine its gravity is the impairment or loss of one’s
capacity to earn and not its mere medical significance.
Permanent total disability means disablement of an
employee to earn wages in the same kind of work or work of
a similar nature that he was trained for or accustomed to
perform, or any kind of work which a person of his mentality
and attainment can do. It does not mean state of absolute
helplessness but inability to do substantially all material acts
necessary to the prosecution of a gainful occupation without
serious discomfort or pain and without material injury or
danger to life. In disability compensation, it is not the injury
per se which is compensated but the incapacity to work.

“Although private respondent’s injury was undeniably

confined to his left foot only, we cannot close our eyes,
 as petitioners would like us to, to the inescapable
impact of private respondent’s injury on his capacity
to work as a seaman. In their desire to escape liability
from private respondent’s rightful claim, petitioners
denigrated the fact that even if private respondent
insists on continuing to work as a seaman, no profit-
minded employer will hire him. His injury erased all
these possibilities.”
(Boldface supplied for emphasis.) “

x x x x Petitioners are, at this point, reminded that the

POEA standard employment contract for seamen was
designed primarily for the protection and benefit of Filipino
seamen in the pursuit of their employment on board ocean-
going vessels. Its provisions must be construed and applied
fairly, reasonably and liberally in their favor. Only then can
its beneficent provisions be fully carried into effect.”

(SEAGULL MARITIME CORP., ET. AL., vs. JAYCEE DEE,

ET.AL., G.R. No. 165156, April 2, 2007; citing Bejerano v.
Employees’ Compensation Commission, G.R. No. 84777, 30
January 1992, 205 SCRA 598, and Philippine Transmarine
Carriers v. NLRC, G.R. No. 123891, 28 February 2001, 353
SCRA 47)

Moreover, it must be observed that in the hot-item case of

Santiago vs. Pacbasin Shipmanagement, Inc., [G.R. No. 194667,
April 18, 2012], the Third Division of the Supreme Court relied on
Section 2(b), Rule VII of the Implementing Rules of Title II, Book
IV of the Labor Code, as amended, or the Amended Rules on
Employees’ Compensation Commission (ECC Rules); which was
discussed in the said case as follows –
 “Section 2(b), Rule VII of the Implementing Rules of
Title II, Book IV of the Labor Code, as amended, or the
Amended Rules on Employees’ Compensation Commission
(ECC Rules), reads:

“Sec. 2. Disability. – x x x

“(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.”

xxxx

“Section 2, Rule X of the ECC Rules reads:

“SEC. 2. Period of entitlement.— (a) The income

benefit shall be paid beginning on the first day of such
disability. If caused by an injury or sickness it shall not be
paid longer than 120 consecutive days except where such
injury or sickness still requires medical attendance beyond
120 days but not to exceed 240 days from onset of
disability in which case benefit for temporary total disability
shall be paid. However, the System may declare the total
and permanent status at any time after 120 days of
continuous temporary total disability as may be warranted
by the degree of actual loss or impairment of physical or
mental functions as determined by the System.”

The accident which injured complainant-appellee occurred

26 February 2011. It is factual and logical that this was the date
of the onset of the disability of complainant-appellee. There can
be no other date. He was incapacitated as of that date. It is of no
moment that there was delay so much delay in his repatriation.
Such delay arose from circumstances or fault not attributable to
him. It is undisputed on record that the delay in repatriating
complainant went until 10 May 2011 or almost three (3) months
from the date of the accident, the onset of the disability.

Thus, by December 2011, in spite of the fact that

complainant-appellee Mr. Eculla, continued to be under
medication, treatment, and therapy for more than eleven (11)
months from the date of the accident (onset of disability) on 26
February 2011, respondents thru respondent Epsilon refused and
failed to acknowledge his Total Permanent Disability. After more
than 240 days from the onset of disability, there was therefore an
unjustified refusal on the part of respondents to pay the Total
Permanent Disability benefits of complainant-appellee Eculla
under the applicable Cyprus Collective Bargaining Agreement
(CBA) in relation to the applicable jurisprudence.

2. The award of attorney’s fees is justified under the

circumstances.

As discussed above and in the other records of the instant

case, by reason of respondents unjustified refusal and failure to
pay the total permanent disability benefits of complainant Eculla,
he was constrained to file the instant complaint against
respondents before this Honorable Commission. In the process,
he had to secure the services of undersigned counsel. And for this
reason, an award of at least ten percent (10%) attorney’s fees is
justified at the minimum.

RELIEF SOUGHT

WHEREFORE, premises considered, it is respectfully asked of

this Honorable Commission that ITS DECISION IN THE ABOVE-
CAPTIONED CASE BE RECONSIDERED and that the appealed
DECISION OF THE HONORABLE LABOR ARBITER BE REINSTATED
AND AFFIRMED, awarding in favor of complainant Total
Permanent Disability Benefits in the amount of US$ 89,100.00
Dollars, and Attorney’s Fees equivalent to 10% thereof.

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.

Santa Cruz, Laguna for Quezon City, 02 January 2013.

Atty. EMMANUEL E. SANDICHO

Counsel for the Complainant
117 P. Guevarra St., Santa Cruz, Laguna
IBP No. 905396, 01.02.2013, Laguna
PTR No. 8163771, 02.05.2012, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0020564

Copy furnished by –

DEL ROSARIO & DEL ROSARIO LAW

15th Floor Pacific Star Building
Corner of Sen. Gil Puyat & Makati Ave.,
Makati City 1200 Metro Manila

EXPLANATION: Service was done by way of registered mail due to

distance and unavailability of messenger.