Republic of the Philippines Department of Labor and Employment NATIONAL LABOR RELATIONS COMMISSION Sub-Regional Arbitration Branch X Iligan City GABRIEL MEJORADA, Complainant,
NLRC NLRC CASE CASE No No.. RABX RABX (M)(M)04-10755-09
-versus-
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 The stan standa dard rd empl employ oyme ment nt cont ontra rac ct
for for
sea eafa fare rers rs was was
form formul ulat ated ed by the the Phil Philip ippi pine ne Over Overse seas as Empl Employ oyme ment nt Agen Agency cy (POEA) pursuant to its mandate under Executive Order No. 247 to "secure the best terms and conditions of employment of Filipino cont contra ract ct work worker ers s and and ensu ensure re comp compli lian ance ce ther therew ewit ith" h" and and to "promote and protect the well-being of Filipino workers overseas.1 It is desig designed ned prima primari rily ly for for the the prote protect ctio ion n and and benef benefit it of Fili Filipi pino no seam seamen en in the the pursu pursuit it of thei theirr emplo employm yment ent on board board ocean-going vessels. Its provisions must, therefore, be construed 1
MAGS MAGSAY AYSA SAY Y MARI MARITI TIME ME CO CORP RP.. vs. vs. JAIM JAIME E M. VELA VELASQ SQUE UEZ, Z, G.R. G.R. No No.. 1798 179802 02,, 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: Nine (9) months Duration: First Assistant Engineer Position: Basic Monthly Salary: US$ 1,149.00 40 hours per week Hours of work: US$ 855.00 FOT 105 hours Overtime: Vacation Leave with Pay: US$ 306.00 per month Manila, Philippines Point of hire: US$ 44.00 per month Subsistence Allowance: 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. 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. 2
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, Attached hereto as Annex “C” is a copy of the Master’s Report which forms an integral portion hereof. 6 Supra. 5
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 preexisting, 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
complainant
until
why the
respondents latter
suffered
continued a
stroke
to
engage
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. Cadiz 11 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 MAGSAYSAY MARITIME CORP. vs. JAIME M. VELASQUEZ, G.R. No. 179802, November 14, 2008 11 12
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. 2. 3.
I am the counsel of the complainant in the aboveentitled case; Upon the instruction and initiative of my client, I prepared the foregoing position paper; 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.
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.
