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Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
Quezon City


NATI ONAL CAPI TAL REGI ON
ARBI TRATI ON BRANCH


OFW-SEA BASED
NLRC Case No. (M) NCR-03-05007-12
Hon. Labor Arbiter Lilia S. Savarri

CONCEPCI ON S. ZABATE (on behal f
of her dec eased husband NARCI SO G.
ZABATE),
Complainant,

-versus-

DOLPHI N SHI P MANAGEMENT, I NC.,
UNI TED OCEAN SHI P MANAGEMENT
PTE, LTD., and DANTE C. MORALDE,
Respondents,
x-----------------------------------------------x



COMPLAI NANTS POSI TI ON PAPER



COMPLAINANT CONCEPCION S. ZABATE (on behalf of her deceased
husband NARCISO G. ZABATE) by undersigned counsel, respectfully
submits this Position Paper, constitutive of her causes of action against
the respondents, to wit



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BRIEF STATEMENT OF THE CASE

In this case, the complainant Concepcion Zabate (hereafter referred
to as complainant Zabate) seeks payment of Total and Permanent
Disability benefits inter alia, of her husband Narciso G. Zabate. Mr. Zabate
was already legally entitled to the said benefit and should have received
the same before his untimely death earlier this year. The claim is based on
the Collective Bargaining Agreement (CBA) between Singapore Maritime
Officers Union/Singapore Organization of Seamen (ITF-SMOU/SOS) and
Singapore Maritime Employers Federation (SMEF) [ITF-SMOU/SOS-SMEF
TCC FOREIGN FLAG VESSELS SEAFARERS AGREEMENT]; and other
pertinent labour laws and jurisprudence.

THE PARTIES

Complainant Concepcion S. Zabate (hereinafter referred to as
complainant Zabate) is of legal age, Filipino, widow of Narciso G.
Zabate, and a resident of 079 Sitio Arcos Sapandaku, Guadalupe, Cebu
City 6000. She can be served with notices, orders, resolutions and other
processes of this Honorable Labor Arbitration Branch at the address of his
undersigned counsel.


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Respondent DOLPHIN SHIP MANAGEMENT, INC., (hereinafter
referred to as respondent Dolphin) is a Philippine corporation operating
as a manning agency engaged in the recruitment and placement of
seafarers for deployment abroad to their foreign principals. It may be
served with summons, orders, resolutions and other processes of this
Honorable Office at 5385 Gen. Luna St., Poblacion, Makati City 1210 NCR.

Respondent UNITED OCEAN SHIP MANAGEMENT PTE LTD,
(hereinafter referred to as UOSM) is one of the foreign principals of
respondent Dolphin, where Narciso G. Zabate was deployed. It is based
abroad, but for purposes of being sued and notified in the Philippines,
service of notices, orders and resolutions of this Honorable Office can be
done at the office of respondent Dolphin, its resident agent in the
Philippines.

Respondent DANTE C. MORALDE (hereinafter referred to as
respondent Moralde) is the President/CEO/Gen. Manager/POEA
Registered Contact Person of respondent Dolphin. He is of legal age,
Filipino and with office address at 5385 Gen. Luna St., Poblacion, Makati
City 1210 NCR, where he may be served with notices, orders and
resolutions of this Honorable Labor Arbitration Office.


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United Ocean Ship Management Pte Ltd. (respondent UOSM) is a
member of the Singapore Maritime Employers Federation (SMEF) as well
as the International Maritime Employers Committee (IMEC) which
concluded collective bargaining agreements (CBAs) with Mr. Zabates
vessel union (ITF-SMOU/SOS). Respondent UOSM is the principal of
Dolphin Ship Management, Inc., (respondent Dolphin), the Philippine
manning agency. Mr. Dante C. Moralde is the President/POEA Accredited
Representative of respondent Dolphin. The vessel Ocean Alliance where
Mr. Zabate served as Chief Officer is owned and/or operated by
respondent UOSM.

ANTECEDENT FACTS

On 26 August 2010, Mr. Narciso G. Zabate and respondents
executed a Contract of Employment whereby Mr. Narciso G. Zabate was
to serve as Chief Mate on board the MV Ocean Alliance for a period of
nine (9) months. Copy of the contract is attached hereto as Annex A.

On 17 September 2010, respondent Dolphin issued an Embarkation
Order; copy of which is hereto attached as Annex B. Shortly thereafter
and pursuant to said order, Mr. Zabate took a flight to Ho Chi Minh City,
Vietnam where MV Ocean Alliance was at the time berthed. Mr. Zabate

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boarded the vessel on 20 September 2010 as shown on pages 8 and 9 of
Mr. Zabates Seamans Book, copy of which is hereto attached as Annex
C.

Based on a report by the Master of MV Ocean Alliance, on 09
February 2011, the vessel was on its way to Maputo, Mozambique for
loading of cargoes. Mr. Zabate helped the crew in the cleaning, scraping
and lifting of rust and residues in one of the cargo holds. Sometime
thereafter, Mr. Zabate began complaining of pain on his right side
testicle. In a period of one month therefrom, the pain progressively
intensified. Copy of the Masters Report in the form of e-mail (Capt.
Perells Request for Medication) is hereto attached as Annex D. Copy of
Reply to the said e-mail from respondent UOSMs Singapore office and
subsequent exchanges of communication from respondent Dolphin (in
Manila) and respondent UOSMs India office are hereto attached as
Annexes D-1 to D-4. These communications were noted and counter-
signed by Chief Officer Zabate himself, 2
nd
Officer Batucan and 3
rd
Officer
Navarro.

On 25 March 2011, about one and a half months from the time the
testicle pains began in Mozambique, medical attention was given in
Kaohsiung, Taiwan. The presence of a Scrotum Tumor was immediately

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detected by the Doctor in Taiwan. Excision of the tumor (cyst removal)
was urgently recommended within one day by Dr. Wu Tsuy Yuan due to
severe pain experienced by Mr. Zabate. The scrotal tumor developed with
the occurrence of a varicose vein in the right side testicle of Mr. Zabate.
Copy of UOSM Form 008.00 which contains the Doctors Report and
Account is hereto attached as Annex E with sub-annexes E-1 to E-2.

Mr. Zabate was repatriated to the Philippines on 12 April 2011, more
than two (2) weeks after he was seen at the medical clinic in Kaohsiung,
Taiwan. Shortly after his arrival in the Philippines on 13 April 2011, he was
examined at the Metropolitan Medical Center Marine Medical Services,
the company designated hospital. Mr. Zabate was diagnosed as follows:

RIGHT VARICOCOELE; RIGHT EPIDIDYMAL CYST;
LEFT MILD VARICOCOELE;
S/P BILATERAL VARICOCOELECTOMY, RIGHT

Copies of medical certificates dated 21 April 2011; dated 06 May
2011 and Brief Clinical History dated 06 May 2011, all issued by
Metropolitan Medical Center Marine Medical Services, are hereto
attached as Annexes F, G and H respectively.

On 19 April 2011, Mr. Zabate underwent surgical operation. The
scrotal tumor in his crotch was finally extracted. The specimen that was

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taken from him consists of a grayish brown tissue 2.2x1.7x0.5 cm in size.
The diagnosis was CONSISTENT WITH EPIDIDYMAL CYSTS /
SPERMATOCOELE (RIGHT). Copy of the Pathology Report is hereto
attached as Annex I.

Connection between the medical ailment and
working conditions at the time of contracting


Based on the report of Capt. Perell, the master of MV Ocean
Alliance, Mr. Zabate began experiencing pains on the scrotum while on
duty on-board the vessel. He was helping the crew in the scraping,
cleaning, lifting of rusts and residues, in one of the cargo-holds and while
the vessel was in the waters of Maputo, Mozambique. It is therefore
indisputable that the medical disorder of Mr. Zabate was contracted in the
course of duty and that the occurrence thereof has a reasonable causal
connection with the working conditions present at the time of contracting
such medical illness. It is of wide knowledge and experience that the
climate temperature in the coastal areas of Mozambique was hot and
humid and at times intolerable. The development of varicocoele is
medically associated with poor sperm quality brought about by high
testicular temperature. Moreover, the cargo hold is also usually a hot,
humid area when a vessel travels in tropical or hot countries such as
coastal Mozambique.

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Varicocoele has been reported in medical journals and websites
as an abnormal enlargement of veins around the testicles. In Mr. Zabates
case, the varicocoele gave rise to the occurrence of a scrotal tumor
which exacerbated the pains that he experienced. The following
researches which appears on almost all other medical websites confirm
the foregoing connection, thus

Varicocoele

This is really the only scrotal swelling which does not fit
the rule of can you get above it? Varicocoele is much
more common on the left side. On this side the testicular
vein drains into the renal vein whereas on the right it goes
straight into the vena cava. For reasons unknown, the one-
way valves stopping reflux are more likely to become
incompetent on the left. There is an association between
the condition and poor sperm quality, presumably linked
to abnormally high testicular temperature. Varicocoeles
are very common, and seem to occur more often where
there is a family history of varicose veins. Although a
varicocoele may present in later life in association with a
renal tumor this is rare.

(Source: www.london-urology.co.uk/ scrotal%20problems.htm)


The following contain information on the hot, humid and
sometimes intolerable climate conditions in coastal Mozambique;
which is associated with the development of poor sperm quality and
leading to the development of the medical disorder known as
Varicocoele. Varicocoele is the English spelling of the word, and

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Varicocele is the American spelling of the word. Both these spellings
refer to the same condition.

Though temperatures and rainfall formulas vary greatly
between the regions and areas of the
country. Mozambiques north-eastern coast happens to be
the hottest and most humid in the country. xxxx xxxx
Climate along the coastal regions can be hot and humid
that is intolerable at times, while inland areas experience
the cooler nights which is life a relief after the heat of the
day.

(Source:
http:/ / www.mapsofworld.com/ mozambique/ geography-
and-history/ climate.html)

Mr. Zabates state of total permanent disability prior to his untimely
death, is logically and solely connected to the above-described incidences
which happened while he was in the performance of duties assigned to
him on-board the vessel M/V Ocean Alliance. Based on the chain of events
which led to his disabled state, Zabates predicament has a direct causal
connection with the incidents on-board; and the sustained effects
acquired in the course of duty while he was on-board the vessel. There is
no other logical conclusion. The medical results do not point to any other
cause.

ISSUES TO BE RESOLVED


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[a]. Whether or not complainant Zabates is entitled to payment of
Permanent Total Disability Benefits of Mr. Narciso G. Zabate
under the ITF-SMOU/SOS-SMEF TCC FOREIGN FLAG VESSELS
SEAFARERS AGREEMENT (CBA); and

[b]. Whether or not complainant Zabate is entitled to payment of
moral and exemplary damages, and attorneys fees.


ARGUMENTS AND DISCUSSIONS

Complainant Zabate respectfully submits that she is entitled to
receive the total and permanent disability benefits owing to her deceased
husband Narciso G. Zabate prior to his death. She likewise respectfully
submits that respondents must likewise pay moral and exemplary
damages and attorneys fees.

BASIS FOR THE CLAIM IN FAVOR OF COMPLAINANT ZABATE FOR
THE PAYMENT OF TOTAL AND PERMANENT DISABILITY BENEFITS

Mr. Zabate has been sick since 09 February 2011 on-board the vessel
MV Ocean Alliance where he was then working. On 25 March 2011, he was
medically examined in Kaohsiung, Taiwan where the Varicocoele and the

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Scrotal Tumor were initially detected. He was repatriated to the
Philippines for medical reasons on 12 April 2011.

From the time the illness was contracted until February 2012, a
period of twelve (12) months or 365 days elapsed. From the date of Mr.
Zabates initial medical examination in Taiwan until February 2012, eleven
(11) months or approximately 333 days elapsed. From the time of Mr.
Zabates repatriation on 12 April 2011 until February 2012, ten (10)
months or approximately 305 days elapsed. All those times until his
untimely death sometime on March 2011, Mr. Zabate had been unable to
work for being sick with Varicocoele which he contracted while in the
vessel under the employ of Dolphin and UOSM.

Therefore, before Mr. Zabate died he was already entitled to Total
and Permanent Disability benefits. It has been consistently held and
affirmed in numerous cases that a seafarer (or any other worker for that
matter) who has been unable to work for a period of at least 120 days as a
result of an illness or injury contracted in the course of duty, is considered
as totally and permanently unfit; hence entitled to total and permanent
disability benefits.


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In the definitive case of CRYSTAL SHIPPING, INC. ET AL., v. DEO P.
NATIVIDAD, [G.R. No. 154798, 20 October 2005], the Supreme Court ruled
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. As gleaned
from the records, respondent was unable to work from
August 18, 1998 to February 22, 1999, at the least, or more
than 120 days, due to his medical treatment. This clearly
shows that his disability was permanent.

Total disability, on the other hand, means the disablement
of an employee to earn wages in the same kind of 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 attainments could do. It does not mean
absolute helplessness. In disability compensation, it is not
the injury which is compensated, but rather it is the
incapacity to work resulting in the impairment of ones
earning capacity.

The latest word of the Supreme Court on the matter is the
MAGSAYSAY MARITIME CORPORATION, ET. AL., v. OBERTO S. LOBUSTA,
(25 January 2012, G.R. No. 177578). In that case, the Supreme Court re-
affirmed its previous rulings concerning the determination of total and
permanent disability, to wit

Petitioners are mistaken that it is only the POEA Standard
Employment Contract that must be considered in
determining Lobustas disability. In Palisoc v. Easways
Marine, Inc., we said that whether the Labour
Codes provision on permanent total disability applies to

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seafarers is already a settled matter. In Palisoc, we cited the
earlier case of Remigio v. National Labour Relations
Commission where we said (1) that the standard
employment contract for seafarers was formulated by the
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; (2) that Section 29
of the 1996 POEA Standard Employment Contract itself
provides that all rights and obligations of the parties to the
contract, including the annexes thereof, shall be governed
by the laws of the Republic of the Philippines, international
conventions, treaties and covenants where the Philippines is
a signatory; and (3) that even without this provision, a
contract of labour is so impressed with public interest that
the Civil Code expressly subjects it to the special laws on
labour unions, collective bargaining, strikes and lockouts,
closed shop, wages, working conditions, hours of labour
and similar subjects.

In affirming the Labour Code concept of permanent total
disability, Remigio further stated:

Thus, the Court has applied the Labour 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. The Court
affirmed the award of disability benefits to the seaman,
citing ECC v. Sanico, GSIS v. CA, and Bejerano v. ECC that
disability 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. It does not mean absolute
helplessness. It likewise cited Bejerano v. ECC, that in a
disability compensation, it is not the injury which is
compensated, but rather it is the incapacity to work
resulting in the impairment of ones earning capacity.


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The same principles were cited in the more recent case
of Crystal Shipping, Inc. v. Natividad. In addition, the Court
cited GSIS v. Cadiz and Ijares v. CA 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.

x x x x

These facts clearly prove that petitioner was unfit to work
as drummer for at least 11-13 months from the onset of
his ailment on March 16, 1998 to 8-10 months after June
25, 1998. This, by itself, already constitutes permanent total
disability. x x x

In Vergara v. Hammonia Maritime Services, Inc., we also
said that the standard terms of the POEA Standard
Employment Contract agreed upon are intended to be read
and understood in accordance with Philippine laws,
particularly, Articles 191 to 193 of the Labour Code, as
amended, and the applicable implementing rules and
regulations in case of any dispute, claim or grievance.

Thus, the CA was correct in applying the Labor
Code provisions in Lobustas claim for disability benefits.
The Labour Arbiter erred in failing to apply them.

Article 192(c)(1) under Title II, Book IV of the Labour Code,
as amended, reads:

ART. 192. Permanent total disability. x x x

x x x

(c) The following disabilities shall be deemed total and
permanent:

(1) Temporary total disability lasting continuously for more
than one hundred twenty (120) days, except as otherwise
provided in the Rules;

x x x x


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Section 2(b), Rule VII of the Implementing Rules of Title II,
Book IV of the Labour 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.

(Note: Numerous citations were omitted for brevity.)

BASIS FOR THE AMOUNT OF THE CLAIM

Being a Senior Officer Mr. Zabate, as now represented by his
surviving wife (Mrs. Concepcion Zabate), is entitled to One Hundred
Forty-Eight Thousand and Five Hundred U.S. Dollars (US$148,500.00). The
basis is the paragraph pertaining to total permanent disability benefits
(100%) of the ITF-SMOU/SOS-SMEF TCC FOREIGN FLAG VESSELS
SEAFARERS AGREEMENT which has been consistently upgraded. The ITF-
SMOU/SOS-SMEF TCC was effective until 2011 when Mr. Zabate
contracted the ailment and remained unfit. On 2012 another agreement
with the IMEC (instead of the SMEF) now representing the SMOU was put
into place. We are sure Dolphin and SMOU and their P&I correspondents
are more than fully aware of these matters.


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The claimant Mrs. Concepcion Zabate on behalf of the now deceased
Mr. Narciso G. Zabate, therefore asks for payment, inter alia, of One
Hundred Forty-Eight Thousand and Five Hundred U.S. Dollars
(US$148,500.00) representing the total and permanent disability benefits
of Mr. Zabate of which he was already entitled to, prior to his untimely
death.

Complainant Zabate is also entitled to receive moral and exemplary
damages, and attorneys fees.

On account of respondents stone refusal to pay complainant what is
clearly due to her husband prior to the latters untimely death, which act
manifests evident bad faith on their part, respondents must likewise be
ordered to pay moral damages in favor of complainant Zabate who, in
addition to her grief, also suffered serious anxiety, sleepless nights,
wounded feelings and loss of appetite. Such moral damages must amount
to at Five Hundred Thousand Pesos [Php500,000.00] Philippine currency.

In order to serve as a lesson to the general public and prevent
further commission of the same or similar acts injurious to complainant,
respondents must likewise be ordered to pay exemplary damages of at
least Five Hundred Thousand Pesos [Php500,000.00] Philippine currency.

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Since it was respondents act of refusing to pay Mr. Zabates
disability benefits which forced complainant Zabate to litigate,
respondents must likewise be ordered to pay attorneys fees equivalent to
ten percent [10%] of the total award in favor of complainant Zabate.

R E L I E F

WHEREFORE, premises considered, it is respectfully asked of this
Honorable Labor Arbitration Office that the following be awarded in favor
of complainant Zabate by ordering respondents to pay

1. TP Disability Benefits = US$ 148,500.00 Dollars
2. Moral damages = PhP 500,000.00 Pesos
3. Exemplary damages = PhP 500,000.00 Pesos
4. Attorneys Fees equivalent to 10% of total award
= US$ 14,850.00 Dollars; and
= PhP 100,000 Pesos

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.

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Santa Cruz, Laguna for Quezon City, 20 June 2012.


At t y. EMMANUEL E. SANDI CHO
Counsel for the Complainant
117 P. Guevarra St., Santa Cruz, Laguna
IBP No. 848920, 01.06.2012, ManilaIV
PTR No. 8163771, 02.05.2012, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0020564


Republic of the Philippines ]
Quezon City, Metro Manila ] s.s.

VERIFICATION & CERTIFICATION

I, CONCEPCION S. ZABATE, of legal age, Filipino, widow of Narciso G.
Zabate and resident of 079 Sitio Arcos Sapandaku, Guadalupe, Cebu City
6000 after having been sworn in accordance with law, depose and state
that

I am the complainant in the above captioned case; I have caused
the preparation and filing of the foregoing Position Paper; I have
read and understood the same; I certify that the declarations
therein are true and correct of my own personal knowledge and
on the basis of authentic records.

I have not commenced any action or proceeding involving the
same issues before any other court, agency or tribunal. To my
personal knowledge, no such action or proceeding is pending
before any other court, agency or tribunal. In the event I come to
know of any other pending action to that effect, I undertake to
inform this office within five [5] days thereafter.

IN WITNESS WHEREFORE, I hereto affixed my signature this 20
th
of
June 2012 in Quezon City.


CONCEPCI ON S. ZABATE
Affiant


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SUBSCRIBED AND SWORN to before me this 20 June 2012 in
Quezon City by affiant with I.D. ______________________________ issued at
_________________________ on __________________________________________.



Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2012.







________________________________________________

Copy furnished --

DEL ROSARI O & DEL ROSARI O LAW
15
TH
Floor Pacific Star Building
Corner Makati and Gil Puyat Avenues
Makati City, Metro Manila


Received by:

Signature : _____________________________
Name : _____________________________
Position : _____________________________
Date : _____________________________







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