Anda di halaman 1dari 15

Republic of the Philippines

Department of Labor and Employment


NATIONAL LABOR RELATIONS COMMISSION
Sub-Regional Arbitration Branch X
Iligan City

GABRIEL MEJORADA,
Complainant,

-versus- NLRC CASE No. RABX (M)-


04-10755-09

MATAGUMPAY MARITIME INC.


and/or NOIMI L. ZABALA,
Respondents.
x----------------------/

POSITION PAPER

COMPLAINANT, through the undersigned counsel, unto this


Honorable Office, most respectfully submits this position paper,
and in support thereof, hereby states that:

PREFATORY STATEMENT

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

1
MAGSAYSAY MARITIME CORP. vs. JAIME M. VELASQUEZ, G.R. No. 179802,
November 14, 2008
and applied fairly, reasonably and liberally in their favor. Only
then can its beneficent provisions be fully carried into effect.2

STATEMENT OF FACTS AND OF THE CASE

Since year 1978, complainant had already been engaged by


respondent MATAGUMPAY MARITIME, INC. (“MATAGUMPAY” for
brevity) as a seafarer. Complainant’s 28-year career as a seafarer
had been devoted exclusively to MATAGUMPAY.

On July 4, 2006, complainant was again engaged by


MATAGUMPAY for its foreign principal, co-respondent YEH
SHIPPING CO., LTD., as a First Assistant Engineer. 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$ 1,149.00
Hours of work: 40 hours per week
Overtime: US$ 855.00 FOT 105 hours
Vacation Leave with Pay: US$ 306.00 per month
Point of hire: Manila, Philippines
Subsistence Allowance: US$ 44.00 per month

Before the said contract was executed, complainant was


made to undergo a Pre-employment Medical Examination4 (PEME)
and was found to be fit to work by the attending physician Dr.
Teresita F. Gonzales. The PEME showed, among others, that
complainant was not suffering any high blood pressure or any
heart trouble.
2
Philippine Transmarine Carriers v. NLRC, G.R. No. 123891, 28 February 2001, 353
SCRA 47.
3
Attached hereto as Annexes “A, A-1 to A-10” are copies of Contract of Employment
which form an integral portion hereof.
4
Attached hereto as Annexes “B, B-1 to B-4” are copies of the Pre-employment
Medical Examination and its supporting documents which form an integral portion
hereof.
On July 14, 2006, complainant departed from the Philippines
and boarded the vessel MV Ken Ten in Japan on the same day.

On November 25, 2006, while complainant was on his


duty, he started to feel that his right arm was numbed/weakened
but just ignored it thinking that it was just a normal numb. After
his duty, he went back to his room and requested the Messman to
massage his right arm for therapy.5

However, on November 27, 2006, immediately after


having his routine inspection around the engine room,
complainant suddenly felt dizzy and eventually collapsed in the
Engine Control Room. Luckily, his shipmates were able to revive
him.6

When the vessel reached Australia, complainant was


brought to the Health Watch Clinics and underwent several
medical examinations from November 30, 2006 to December 5,
2006. Accordingly, complainant was diagnosed to have Right
Hemiparesis, Gout, Hypertension and Elevation of inflammatory
markers.7 For this reason, complainant was repatriated to the
Philippines on December 8, 2006.

From December 14-22, 2006, complainant was referred


to a company-designated physician at the Delos Santos Medical
Center for further medical care and treatment. All the medical
records of complainant while he was in Delos Santos Medical
Center are all in the possession of MATAGUMPAY. Thereafter,

5
Attached hereto as Annex “C” is a copy of the Master’s Report which forms an
integral portion hereof.
6
Supra.
7
Attached hereto as Annex “D, D-1 and D-10” are copies of the Medical Reports of Health
Watch Clinics.
complainant went back home to his residence in the Municipality
of Maigo, Lanao del Norte. At present, complainant is still suffering
partial paralysis and had not been able to resume work as a
seafarer.

On January 17, 2007, complainant was admitted to the


ANDOT MEDICAL CLINIC in Bacolod, Lanao del Norte and was
attended by Dr. Bob Andot. Said physician made the following
diagnosis: Transient Hypotension, Gout, Acute Gastritis and Status
Post Stroke.8

Subsequently, sometime in October 2007, respondents


through Noimi Zabala (“Mr. Zabala for brevity), the
owner/president of MATAGUMPAY, together with his son, nephew
and a company-designated physician visited complainant at his
house. During said visit, Mr. Zabala with the company physician
assured complainant and his wife that they will receive a Grade 6
disability benefit which is 50 % of US$ 50,000. On said occasion,
complainant’s wife asked Mr. Zabala for the copy of complainant’s
medical records during his confinement in Delos Santos Medical
Center, in order that she could process complainant’s benefits.
However, Mr. 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.

Relying on the sweet assurances and promises of Mr.


Zabala, complainant and his wife felt secured that he will
eventually receive his disability benefits. But, much to their
dismay, until now MATAGUMPAY has yet to pay complainant’s
disability benefit.

8
Attached hereto as Annex “E’ is a copy of Dr. Bob C. Andot’s Medical Findings.
Almost three years has passed, complainant was
starting to feel anxious and suspicious as his right to claim for the
disability benefit is about to prescribe. Thus, sometime in January
2009, complainant went to the CENTER FOR ALTERNATIVE LEGAL
FORUM AND JUSTIC (CALL FOR JUSTICE), INC., an NGO based in
Iligan City, to seek legal advice. On February 3, 2009, the CALL
FOR JUSTICE sent an invitation letter to MATAGUMPAY for a
possible mediation9.

Sometime in April 2009, the CALL FOR JUSTICE received a


letter10 from the lawyers of MATAGUMPAY, pertinent portions
thereof are as follows:
“1. Our client has completely fulfilled all its obligations to
Mr. Mejorada under the POEA Contract. When complainant was
diagnosed with his injury/illness, he was afforded all the
necessary medical treatment and assistance. He was likewise
paid his full sickness allowance.

2. The claim for disability benefits was properly rejected


as Mr. Mejorada’s illness was found to be pre-existing and not
work-related.

Under Section 20-B of the POEA contract for an


illness/injury to be compensable, such must be (a) work-related;
and (b) suffered during the term of his employment contract.

In the instant case, the company-designated physician has


decalred that Mr. Mejorada’s illness is not work-related.

Further, it was found that Mr. Mejorada knew of his illness


for the past 4 years taking Neobloc and Delehex as maintenance.

Due to the foregoing, Mr. Mejorada is not entitled to any


disability benefits under the POEA Contract.”

Disappointed with MATAGUMPAY’s response on his claim,


complainant filed the instant complaint before this Honorable
Office on April 21, 2009.

9
Attached hereto as Annex “F’ is a copy of the Invitation Letter.
10
Attached hereto as Annexes “G – G-1” are copies of the letter sent by Respondents’
counsel to Call For Justice.
On May 11, 2009, a mandatory conference was held for a
possibility of amicable settlement and determination of other
matters, such as but not limited to the simplification of issues.
However, no agreement was reached or amicable settlement was
entered into. As a consequence, this Honorable Office issued an
order directing the parties to submit their respective position
paper.

Hence, this position paper.

ISSUES:

1. WHETHER OR NOT COMPLAINANT IS ENTTILED TO A


DISABILITY PAY;

2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO A


SICKNESS ALLOWANCE;

3. WHETHER OR NOT RESPONDENTS ARE LIABLE FOR MORAL


AND EXEMPLARY DAMAGES TO THE COMPLAINANT; and

4. WHETHER OR NOT COMPLAINANT IS ENTILED TO RECOVER


ATTORNEY’S FEES FROM RESPODENTS.

DISCUSSIONS:

I.

COMPLAINANT IS ENTITLED TO DISABILITY BENEFITS

Under the 2000 POEA Standard Employment Contract, it is


provided that for an illness/injury to be compensable, such must
be (a.) work related; and (b) suffered during of his employment
contract.
The abovementioned requisites are present in the instant
case.

FIRST. THERE IS A
REASONABLE CONNECTION
BETWEEN RESPONDENT’S
ILLNESS AND THE NATURE OF
HIS JOB. THUS, IT IS WORK
RELATED.

Respondents, in their letter dated April 13, 2009, claimed


that complainant is not entitled to disability pay because
complainant’s illness was found to be pre-existing and not work
related. Assuming arguendo that complainant’s illness was pre-
existing, the same does not deprive complainant from being
entitled to disability benefits. In the case of NYK-FIL SHIP
MANAGEMENT INC. vs. ALFONSO T. TALAVERA, G.R. No. 175894,
November 14, 2008, the Supreme Court, expounded the nature of
a “work-related injury or illness”, 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. It is indeed safe to presume that, at
the very least, the arduous nature of Hormicillada'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. It is not necessary, in
order for an employee to recover compensation, that he
must have been in perfect condition or health at the time
he received the injury, or that he be free from disease.
Every workman brings with him to his employment certain
infirmities, and while the employer is not the insurer of the health
of his employees, he takes them as he finds them, and assumes
the risk of having a weakened condition aggravated by some
injury which might not hurt or bother a perfectly normal, healthy
person.”

As reflected in the Master’s Report, complainant’s duty as a


First Assistant Engineer requires him to have a daily routine
inspection inside the vessel’s engine room. In line with his duty,
complainant had been constantly exposed to rapid variations of
temperature, from the excessive heat inside the engine room to
the cold weather in the open sea. This kind of work environment
has caused complainant to suffer a stroke due to hypertension.
Thus, as in the above cited case, 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, and is
thus work-related.

SECOND. COMPLAINANT
SUFFERED A STROKE DURING
THE TERM OF HIS
EMPLOYMENT.

With respect to the second requisite, there is no question


that complainant suffered his illness during the term of his
employment with respondents. 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.

Worthy of note is the fact that complainant spent his entire


career as a seafarer with respondent MATAGUMPAY. Complainant
started with MATAGUMPAY way back in 1978. Back then,
complainant was a healthy and an efficient seafarer which was
the main reason why respondents continued to engage
complainant until the latter suffered a stroke and was
subsequently repatriated in 2006. Since complainant had only one
employer in his entire career which was the respondent, thus,
there can be no other logical explanation as to where did
complainant acquire his illness, but only from his employment
with the respondents.

Besides, when complainant underwent his PEME, the


attending physician pronounced him to be fit to work and it also
showed that before complainant boarded the vessel, he was not
suffering any high blood pressure or any heart trouble. No doubt
complainant acquired his illness in the course of his employment
with respondents because he was declared to be healthy prior to
his departure. Had he not been found fit to work prior to his
departure, he would not have been allowed to board the vessel.

In view of the above premises, it is clear that complainant’s


illness is compensable under the 2000 POEA Standard
Employment Contract.

COMPLAINANT’S DISABILITY IS
TOTAL AND PERMANENT.

With regards to the degree of complainant’s disability, it is


posited that it is total and permanent. 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. Permanent total disability means disablement of
an employee to earn wages in the same kind of work, or 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 attainment
could do. In addition, the Supreme Court in GSIS v. Cadiz11 held
that permanent disability is the inability of a worker to perform his
job for more than 120 days, regardless of whether or not he loses
the use of any part of his body.12

In the case at bar, complainant has no longer able to resume


his work as a seafarer from the time he was repatriated, mainly
because his illness has caused him partial paralysis. Until now,
complainant is still under treatment and medications. What is
worse, 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. As stated
G.R. No. 145093, July 8, 2003
11

MAGSAYSAY MARITIME CORP. vs. JAIME M. VELASQUEZ, G.R. No. 179802,


12

November 14, 2008


in Dr. Vicente P. Mejorada’s Medical Certficate13, complainant
could no longer able to perform the same work as he used to
before his repatriation.

Such being the case, complainant’s disability is considered


total and permanent and because of which, he is entitled to a
Grade 1 disability benefit which is computed as follows: US $ 50,
000 x 120% = US $ 60,000.

II.

COMPLAINANT IS ENTITLED TO A SICKNESS ALLOWANCE

Under the 2000 POEA Standard Employment Contract, the


liabilities of the employer when the seafarer suffers work-related
injury or illness during the term of his contact include, among
others, 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.
However, if the 120 days initial period is exceeded and no such
declaration is made because the seafarer requires further medical
attention, then the temporary total disability period may be
extended up to a maximum of 240 days, subject to the right of
the employer to declare within this period that a permanent
partial or total disability already exists.

In this case, there was no such declaration made by the


company-physician that has been communicated to the
complainant regarding the degree of his disability. In fact, all
medical records of the complainant while he was confined in
Delos Santos Medical Center are still in the possession of the

13
Attached hereto as Annex ‘H” is Dr. Mejorada’s Medical Certificate.
respondents. Up to now, complainant is still under treatment and
medication. As a consequence, the sickness allowance of the
complainant should be computed at the maximum period which is
240 days or 8 months. Hence, the computation is as follows: US $
1, 149.00 as his basic wage multiplied by 8 months (240 days) =
US $ 9, 192 at its peso equivalent at the time of payment.

III.

RESPONDENTS ARE LIABLE FOR DAMAGES

RESPONDENT ACTED IN BAD


FAITH.

It has been almost three years now that respondents made


complainant to believe that they were just processing his
disability benefit. All the while, complainant had trusted
respondents’ sweet promises that he is going to receive his
disability benefit. But, much to his dismay, complainant received
a letter from the respondents recently denying his claim for
disability benefit. 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.
Were it not for the timely advised of the Call For Justice to file this
instant complainant, complainant’s right to claim would have
already been prescribed this year.
The deceptive promise of the respondents was really intentional
in order to defeat complainant’s right to claim. For this reason,
an award of moral and exemplary damages should be given in
favor of the complainant.

IV.

RESPONDENTS ARE LIABLE FOR ATTORNEY’S FEES


Under Article 2208 of the New Civil Code, attorney's fees can
be recovered in actions for the recovery of wages of laborers and
actions for indemnity under employer's liability laws. Attorney's
fees are also recoverable when the defendant's act or omission
has compelled the plaintiff to incur expenses to protect his
interest.14

In the instant case, 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.

PRAYER
WHEREFORE, premises considered, 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$60,000 at its peso equivalent at the time of


payment, representing disability benefits corresponding to
Total Permanent;

(2) US $ 9, 192 at its peso equivalent at the time of


payment, representing Sick Wage allowance;

(3) P500,000, representing moral and exemplary


damages; and

(4) Attorney’s fees equivalent to 10% of the


judgment award.

Other reliefs which are just and equitable are likewise prayed
for.

14
BERNARDO REMIGIO vs. NATIONAL LABOR RELATIONS COMMISSION, G.R. No.
159887, April 12, 2006
Done this ___ day of August 2009, in Iligan City, Philippines.

ATTY.VERMIN M. QUIMCO
Counsel for the Complainant
IBP No. 716098 12-24-08
Roll No. 35377 05/28/1988
MCLE COMPLIANCE No. II-0016426
CALL FOR JUSTICE, Inc.
RM 202 Monsanto Bldg., Don Pedro Celdran St.,
Rosario heights, Tubod, Iligan City

Copy furnished:

Del Rosario and Del Rosario


Counsel for the Respondents
15/F Pacific Star Building
Makati Ave., cor. Sen. Gil Puyat Ave.
1200 Makati City

EXPLANATION

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.

ATTY. VERMIN M. QUIMCO

Republic of the Philippines )


City of Iligan )S.S.

VERIFICATION

I, VERMIN M. QUIMCO, of legal age, Filipino, married,


and a resident of Dona Maria Subdivision, Iligan City after having
been duly sworn to oath in accordance with law, do hereby
depose and say, THAT:

1. I am the counsel of the complainant in the above-


entitled case;
2. Upon the instruction and initiative of my client, I
prepared the foregoing position paper; and
3. 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.

IN WITNESS WHEREOF, We have hereunto set our hands this


____ day of August 2009, in Iligan City, Philippines.

VERMIN M. QUIMCO

SUBSCRIBED AND SWORN to before me this ___th day of


August 2009, in Iligan City, Philippines. Affiant is personally known
to me.

Republic of the Philippines )


ILIGAN CITY ) S.S.

AFFIDAVIT OF SERVICE
I, KERTH ABLANQUE, as legal staff of Atty. Vermin Quimco,
whose office address is situated at RM 202 Monsanto Bldg., Don Pedro
Celdran St., Rosario heights, Tubod, Iligan City, after having been duly sworn
to oath, depose and say:

1. That on _____________, I served a copy of the following pleading by


Registered Mail:

NATURE OF PLEADING/PAPER

POSTION PAPER
In Re: Mejorada vs. Matagumpay Maritime Inc., et. al.,
NLRC Case No. RABX(M)-04-10755-09

2. That I served said position paper together with its annexes by


depositing a copy in the post office in a sealed envelope, plainly
addressed to the parties, with postage fully prepaid, as evidenced by
the attached Registry Receipt with Registry Receipt Numbers below,
with the instructions to the postmaster to return the mail to the sender
after ten (10) days if undelivered;

3. That the address and the respective registry receipt are:

Name of Addressee R.R. No.

Del Rosario and Del Rosario


15/F Pacific Star uilding
Makati Ave., cor. Sen. Gil Puyat Ave.
1200 Makati City ___________________

4. 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..

IN WITNESS WHEREOF, I have hereunto set my hand this, _______ day of


August 2009, Iligan City, Philippines.

Kerth Ablanque
Affiant

SUBSCRIBED AND SWORN to before me this ______ day of August 2009 at


Iligan City, Philippines, affiant is personally known to me.