Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

NELSON LIBRE ESCONDE,

Complainant, NLRC CASE NO. NCR 06-06808-16
Hon. L.A. ALBERTO S. ABALAYAN
- versus –

ABOSTA SHIPMANAGEMENT,
CORP., PANSTAR SHIPPING CO.,
LTD., and RONALD E. CASTRO,
Respondents.
x-------------------------------------------x

COMPLAINANT’S
POSITION PAPER
Complainant NELSON LIBRE ESCONDE by undersigned
counsel, respectfully submits this Position Paper, constitutive of
his causes of action against the respondents, to wit –
PAGE 1 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

PREFATORY STATEMENTS

“Indeed, under Section 32 of the POEA-SEC,

only those injuries or disabilities that are classified as
Grade 1 may be considered as total and permanent.
However, IF THOSE INJURIES OR DISABILITIES
WITH A DISABILITY GRADING FROM 2 TO 14,
HENCE, PARTIAL AND PERMANENT, WOULD
INCAPACITATE A SEAFARER FROM
PERFORMING HIS USUAL SEA DUTIES FOR A
PERIOD OF MORE THAN 120 OR 240 DAYS,
 DEPENDING ON THE NEED FOR FURTHER
MEDICAL TREATMENT, THEN HE IS, UNDER
LEGAL CONTEMPLATION, TOTALLY AND
PERMANENTLY DISABLED. In other words, an
impediment should be characterized as partial and
permanent not only under the Schedule of Disabilities
found in Section 32 of the POEA-SEC but should be
so under the relevant provisions of the Labor Code
and the Amended Rules on Employee Compensation
(AREC) implementing Title II, Book IV of the Labor
Code. That while the seafarer is partially injured or
disabled, he is not precluded from earning doing the
same work he had before his injury or disability or
that he is accustomed or trained to do. Otherwise, IF
HIS ILLNESS OR INJURY PREVENTS HIM FROM
ENGAGING IN GAINFUL EMPLOYMENT FOR MORE
THAN 120 OR 240 DAYS, AS THE CASE MAY BE, HE
SHALL BE DEEMED TOTALLY AND PERMANENTLY
DISABLED.” Kestrel Shipping Co., Inc., Capt. Amador
P. Sevillion and Atlantic Manning Ltd., vs. Francisco
D. Munar [G.R. No. 198501, 30 January 2013]
(Capitalization supplied.)

“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
PAGE 2 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

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.
(SEAGULL MARITIME CORP., ET. AL., vs. JAYCEE
DEE, ET.AL., G.R. No. 165156, 02 April 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)
 “A total disability does not require that the
employee be completely disabled, or totally
paralyzed. What is necessary is that the injury must
be such that the employee cannot pursue his or her
usual work and earn from it. On the other hand, a
total disability is considered permanent if it lasts
continuously for more than 120 days. What is
crucial is whether the employee who suffers from
disability could still perform his work
notwithstanding the disability he incurred.”

“Therefore, it is fitting that respondent be

entitled to permanent total disability benefits
considering that he would not able to resume his
position as a maritime officer and the probability that
he would be hired by other maritime employers
would be close to impossible. Indeed, a sight-
impaired maritime applicant cannot stand in the
same footing as his healthy co-applicant.” (FIL-STAR
MARITIME CORPORATION, ET., AL., V. HANZIEL O.
ROSETE, G.R. No. 192686, 23 November 2011)

STATEMENT OF THE CASE

This is an action asking for payment by respondents of the

permanent total disability benefits, sickness wages, damages
and attorney’s fees in favor of herein complainant Nelson L.
Esconde. These claims are based on the POEA Standard
Contract For Seafarers On-Board Ocean-Going Vessels; and
other pertinent labor laws and jurisprudence.

THE PARTIES
PAGE 3 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

Complainant NELSON LIBRE ESCONDE (hereinafter

referred to as complainant Esconde) is of legal age, Filipino,
married and a resident of 1028 Felix Huertas Street, Santa Cruz,
Manila 1014 NCR. He can be served with notices, orders,
resolutions and other processes of this Honorable Labor
Arbitration Branch at the address of his undersigned counsel.
For this purpose, copy of Special Power of Attorney executed by
complainant Esconde is hereto attached as Annex “A”.

Respondent ABOSTA SHIPMANAGEMENT CORPORATION,

(hereinafter referred to as respondent Abosta) 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 8th. Floor Jemarsons Place, 1626 Pilar Hidalgo Lim Street,
Malate, Manila NCR 1004.

Respondent foreign principal is PANSTAR SHIPPING CO.

LTD., (hereinafter referred to as respondent Panstar) is one of
the foreign principals of respondent Abosta, where complainant
Esconde was deployed. 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
Abosta, the resident agent in the Philippines.

Respondent RONALD E. CASTRO (hereinafter referred to

as respondent Castro) is the President/G.M./CEO/POEA
Registered Contact Person of respondent Abosta. She is of legal
age, Filipino and with office address at 8th. Floor Jemarsons
Place, 1626 Pilar Hidalgo Lim Street, Malate, Manila NCR 1004,
where he may be served with notices, orders and resolutions of
this Honorable Labor Arbitration Office.

STATEMENT OF THE FACTS

1. On or about 20 February 2015, the parties entered into a

Contract of Employment for complainant Esconde to serve
as ABLE SEAMAN on board the vessel “M/T GAS ARIES”
with a total monthly salary of US$1,507.00; point of hire:
Manila, Philippines. Copy of POEA Approved Employment
Contract is hereto attached as Annex “B”.

2. On or about 24 February 2015, complainant Esconde

PAGE 4 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

departed from the Philippines and joined the vessel shortly

upon arrival in the port where the vessel was then
stationed.

3. On or about 31 October 2015 an accident happened,

complainant Esconde was on duty, lowering a rope of a
flag in the vessel which was cut loose by strong winds,
when a swivel (a metal object) suddenly flew-out and hit
complainant Esconde’s right eye. He felt a very painful
sensation from his right with instant blurring of vision and
discharge of fluid from the eye. Complainant Esconde was
given Amoxicillin 500 mg. on-board in order to somehow
prevent infection.
 4. The pain and eventual loss of vision on the right eye
persisted for two (2) month while the vessel took on its
journey from one port to another.

5. On 11 November 2015, when the vessel reached the port

of TANJUNG UBAN IN South Korea, complainant was
brought to a medical institution for examination and
treatment because of recurring pains on his right eye
which already lost its vision. He was diagnosed with eye
injury resulting les dislocation and glaucomatic trauma,
right eye. And the incident was described as an injury
sustained while working on the vessel. Complainant
Esconde was recommended for repatriation for further
medical examination and treatment in the Philippines.
Copy of medical recquisition form is hereto attached as
Annex “C” to “C-1”.

6. Complainant Esconde arrived in the Philippines on or

about 12 November 2015 coming from Singapore where the
vessel docked. He was repatriated on medical treatment
orders from the respondents. Shortly thereafter,
complainant Esconde was referred for medical
examination and management at the Nicanor G. Cruz (NGC)
clinic located at Times Plaza Building, U.N. Avenue corner
Taft Avenue, Ermita, Manila. After examinations were done,
Dr. Cruz in turn referred complainant Esconde to the
hospital Medical Center Manila for surgical operation on
his right eye.

7. Complainant was admitted at the Medical Center Manila on

O2 December 2015 and stayed there until 04 December
PAGE 5 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

2015. The operation conducted on complainant Esconde’s

right eye was called “S/P CLOSED VITRECTOMY AND
LENSECTOMY”. Upon complainant Esconde’s discharge,
final diagnoses indicated were as follows—

[1]. S/P Closed Vitrectomy and Lensectomy for Post-

Traumatic Lens Dislocation & Secondary to
Glaucoma, Right Eye;
[2]. Glaucomatous Optic Atrophy.

Copy of Medical Abstract/Discharge Summary is hereto

attached as Annex “D” to “D-2” for immediate reference.
 8. Complainant Esconde’s right eye greatly shrunk
(Glaucomatous Optic Atrophy), became dry (optically dead)
and lost its capacity to see. In other words, because of the
accident which happened on-board the vessel while he was
working there, complainant Esconde became blind. Hence,
due his condition, complainant Esconde was no longer
hired as an Able Seaman. The great physical exaction
required of an Able Seaman obviously cannot be
performed anymore by complainant Esconde, whose right
eye is now blind.

9. Thence, in the aftermath of his medical treatment and

before the instant case was filed, respondents thru
respondent Abosta offered complainant Esconde a
disability benefit equivalent to less than half of what is
obviously due to him, which under the circumstances
amount to total permanent disability benefits under the
POEA Standard Employment Contract for seafarers.

10. Faced with this predicament that his right eye was already
blind, zero prospect of re-employment as a seaman, and it
was then already about two hundred sixty (260) days from
the onset of the blinding injury; and at that time about two
hundred (200) days from his sign-off from the vessel,
complainant Esconde on 21 May 2016 decided to consult
an expert in Ophthalmology Medicine in the person of Dr.
Danilo O. Reyno, MD, FICS (Diplomate, Philippine Board of
Ophthalmology). The results were as follows:

“Based on the history of trauma while at

the sea, and the trauma not properly treated by
an eye doctor for more than one month (actually
two months), the complication of the eye injury
PAGE 6 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

set-in, the vision on his right eye was completely

lost. The trauma could have dislocated the lens,
causing the occurrence of secondary Glaucoma,
acute; causing atrophic changes to the Rt eye
when not relieved as soon as possible causing
irreparable damage.”

“Since his work entails the need for

distance and depth perception, he needs to have
good vision on both eyes. Thus, he won’t be able
to perform the work that is needed of him as an
AB seaman.”
 “He is deemed having a permanent
disability.”

“(Sgd.) DANILO Q. REYNO MD”

“OPHTHALMOLOGIST”

Copy of Ophthalmology Evaluation report of Dr. Danilo Q.

Reyno, consisting of 3 pages, is hereto attached and
marked as Annexes “E” to “E-2”.

11. The dispute between complainant Esconde and

respondents was brought before the Single Entry
Approach (SEnA) mediation procedures at the National
Labor Relations Commission at the instance of
complainant Esconde. No settlement was reached inspite
of earnest efforts on the part of the conciliator-mediator
assigned. Respondents offered a sum less than half of
what is due to complainant under the circumstances.

12. During the mandatory conferences before the Honorable

Labor Arbiter, the parties failed to conclude a settlement.
Hence, the filing of this position paper ensued.

ISSUES TO BE RESOLVED

[a]. Whether or not complainant Esconde is entitled to payment

of Permanent Total Disability Benefits pursuant to the
POEA Standard Contract for Seafarers On-board Ocean-
Going Vessels, the facts and relevant jurisprudence; and

[b]. Whether or not complainant Esconde is entitled to payment

PAGE 7 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

of moral and exemplary damages, and attorney’s fees.

ARGUMENTS AND DISCUSSIONS

Complainant Esconde thru undersigned counsel

respectfully submits in the affirmative.

Complainant Esconde submits that he is entitled to be

paid, among others, his total permanent disability benefits of
Sixty Thousand US Dollars [US$60,000.00] under the POEA
Standard Contract of Employment for Seafarers On-board
Ocean-going Vessels.
 COMPLAINANT ESCONDE CAN NO LONGER WORK AS A
SEAFARER ON ACCOUNT OF HIS CONTINUING WEAKNESS,
IMBALANCE AND RIGHT EYE BLINDNESS, CAUSING
RESTRICTIVE MOVEMENT OF HIS BODY. SUCH DISABILITY
WILL BE FOR LIFE AND WILL PRECEDE INDEFINITELY BEYOND
THE PERIOD OF THE INITIAL 120 DAYS TREATMENT AND EVEN
THE 240 DAYS EXTENSION TREATMENT PERIOD (WHICH
PERIOD WAS NOT DECLARED BY RESPONDENTS’ DOCTOR).
THESE PERIODS ALREADY ELAPSED AND COMPLAINT
REMAINS INCAPACITATED TO WORK.

The following Supreme Court teachings are apropos to the

instant case, to wit –

“Indeed, under Section 32 of the POEA-SEC,

only those injuries or disabilities that are classified as
Grade 1 may be considered as total and permanent.
However, IF THOSE INJURIES OR DISABILITIES
WITH A DISABILITY GRADING FROM 2 TO 14,
HENCE, PARTIAL AND PERMANENT, WOULD
INCAPACITATE A SEAFARER FROM
PERFORMING HIS USUAL SEA DUTIES FOR A
PERIOD OF MORE THAN 120 OR 240 DAYS,
DEPENDING ON THE NEED FOR FURTHER
MEDICAL TREATMENT, THEN HE IS, UNDER
LEGAL CONTEMPLATION, TOTALLY AND
PERMANENTLY DISABLED. In other words, an
impediment should be characterized as partial and
permanent not only under the Schedule of Disabilities
found in Section 32 of the POEA-SEC but should be
PAGE 8 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

so under the relevant provisions of the Labor Code

and the Amended Rules on Employee Compensation
(AREC) implementing Title II, Book IV of the Labor
Code. That while the seafarer is partially injured or
disabled, he is not precluded from earning doing the
same work he had before his injury or disability or
that he is accustomed or trained to do. Otherwise, IF
HIS ILLNESS OR INJURY PREVENTS HIM FROM
ENGAGING IN GAINFUL EMPLOYMENT FOR MORE
THAN 120 OR 240 DAYS, AS THE CASE MAY BE, HE
SHALL BE DEEMED TOTALLY AND PERMANENTLY
DISABLED.” Kestrel Shipping Co., Inc., Capt. Amador
P. Sevillion and Atlantic Manning Ltd., vs. Francisco
 D. Munar [G.R. No. 198501, 30 January 2013]
(Capitalization supplied.)

“The law looks tenderly on the laborer. Where

the evidence may be reasonably interpreted in two
divergent ways, one prejudicial and the other
favorable to him, the balance must be tilted in his
favor consistent with the principle of social justice.”

“As to whether petitioner can claim disability

benefits, the Court rules in the affirmative. Permanent
disability refers to the inability of a worker to perform
his job for more than 120 days, regardless of whether
he loses the use of any part of his body. What
determines petitioner’s entitlement to permanent
disability benefits is his inability to work for more
than 120 days.” (or 240 days as the case may be,
comment supplied.) (LEOPOLDO ABANTE VS. KJGS
FLEET MANAGEMENT MANILA, ET. AL., G.R. No.
182430, 04 December 2009)

The foregoing rulings are off-shoot to the seminal rulings

in Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R. No.
154798, 20 October 2005] and Bernardo Remigio v. NLRC, Et Al.,
[G.R. No. 159887, 12 April 2006], as well as subsequent
jurisprudence maintaining the said rulings, notwithstanding the
revisions made in the POEA Standard Contract.

It is very clear that the injury was sustained in the course

of employment and undeniably in the performance of duty.
Section 20 [B] of the POEA Standard Contract provides –
PAGE 9 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

“B. COMPENSATION AND BENEFITS FOR

INJURY OR INJURY

“The liabilities of the employer when the

seafarer suffers work-related injury or illness
during the term of his contract are as follows:

1. The employer shall continue to pay the

seafarer his wages during the time he is on
board the vessel;

2. If the injury or illness requires medical

and/or dental treatment in a foreign port, the
 employer shall be liable for the full cost of
such medical, serious dental, surgical and
hospital treatment as well as board and
lodging until the seafarer is declared fit to
work or to be repatriated.

However, if after repatriation, the seafarer still

requires medical attention arising from said
injury or illness, he shall be so provided at
cost to the employer until such time he is
declared fit or the degree of his disability has
been established by the company-designated
physician.

3. Upon sign-off from the vessel for medical

treatment, the seafarer is entitled to 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 xxx xxx

xxxxx xxxxx

5. Once signed off from the vessel for medical

treatment, the employer shall bear the full
cost of repatriation in the event the seafarer is
declared (1) fit for repatriation; or (2) fit to
work but the employer is unable to find
employment for the seafarer on board his
former vessel or another vessel of the
employer despite earnest efforts.

In case of permanent total or partial disability

of the seafarer caused by either injury or
PAGE 10 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

illness the seafarer shall be compensated in

accordance with the schedule of benefits
enumerated in Section 32 of his Contract.
Computation of his benefits arising from an
injury or disease shall be governed by the
rates and the rules of compensation
applicable at the time the injury or disease
was contracted.”

In this case, the injury that was proximately caused by an

accident, is work-related since the same was sustained in the
course of duty. Said injury was not pre-existing since
complainant underwent the mandatory pre-employment medical
 examination before he was employed by respondent, and was
found to be fit and given a clean bill of health prior to his
employment.

In that ten (10) year old but ten-fold significant 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 one’s
earning capacity.”

The ruling in the Crystal Shipping Case is a refinement of

earlier decisions, viz –
PAGE 11 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

“In the case of the Philippine Transmarine

Carriers, Inc. vs. NLRC. 358 SCRA 47, the
Supreme Court held 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 person
of his mentality and attainment could do. It
does not mean absolute helplessness (ECC vs.
Edmund Sanico, 321 SCRA 268: GSIS vs. CA
 285 SCRA 430; GSIS vs. CA 260 SCRA 133:
Bejerano vs. ECC, 205 SCRA 598).”

“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” (Bejerano vs. ECC
205 SCRA 598: Ulibas vs. Republic, 83 SCRA
819; Roma vs. WCC, 80 SCRA 170).

“One should always remember that the POEA

Standard Employment Contract for Seamen 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 and applied fairly, reasonably and
liberally in their favor. Only then can its
beneficent provisions be fully carried into
effect.” (Wallem Maritime Services, Inc. vs.
NLRC 318 SCRA 632).

In Bernardo Remigio v. NLRC, Et Al., [G.R. No. 159887, 12

April 2006] the ten-fold significance of the seminal ruling in
Crystal Shipping case was exponentially affirmed when the
Honorable Supreme Court, acting through then Associate
Justice [later on Chief Justice] Renato Puno, included the
application of the concept of Permanent Total Disability under
the Labor Code in favor of the sick or injured seafarer in addition
to the provisions of the POEA Standard Employment Contract
for seafarers. The ruling in the said case reads as follows:

“Second. Is the Labor Code's concept of

PAGE 12 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

permanent total disability applicable to the

case at bar? Petitioner claims to have
suffered from permanent total disability as
defined under Article 192(c)(1) of the Labor
Code, viz:

“Art. 192 (c) The following disabilities shall

be deemed total and permanent:
“(1) Temporary total disability lasting
continuously for more than one hundred
twenty days, except as otherwise provided in
the Rules; x x x
 “Petitioner likewise cites Vicente v. ECC1[35]
and Abaya, Jr. v. ECC,2[36] both of which
were decided applying the Labor Code
provisions on disability benefits. Private
respondents, on the other hand, contend that
petitioner erred in applying the definition of
‘permanent total disability’ under the Labor
Code and cases decided under the ECC as
the instant case involves a contractual claim
under the 1996 POEA SEC.

“Again, we rule for petitioner.

“The standard employment contract for

seafarers was formulated by the POEA
pursuant to its mandate under E.O. 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.’3[37] Section 29 of
the 1996 POEA SEC itself provides that ‘[a]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.’ Even without this provision, a
contract of labor is so impressed with public
interest that the New Civil Code expressly
subjects it to ‘the special laws on labor
unions, collective bargaining, strikes and
lockouts, closed shop, wages, working
PAGE 13 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

conditions, hours of labor and similar

subjects’."4[38]

“Thus, the Court has applied the Labor Code

concept of permanent total disability to the
case of seafarers. In Philippine Transmarine
Carriers v. NLRC,5[39] 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,6[40] GSIS v. CA,7[41]
and Bejerano v. ECC8[42] 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,9[43] 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.

The law does not require that a seafarer be totally

paralyzed or be an invalid resigned to his wheelchair or bed, in
order to claim total permanent disability benefits. Jurisprudence
laid down reasonable parameters to determine a claim for
permanent-total disability benefits. The following time-honored
principles were re-affirmed in the fairly recent case of
CARMELITO N. VALENZONA, petitioner, Vs. FAIR SHIPPING
CORPORATION AND/OR SEJIN LINES COMPANY LIMITED,
respondents, [G.R. No. 176884, October 19, 2011], thus –

"Permanent disability refers to the inability

of a worker to perform his job for more than 120
days, regardless of whether he loses the use of
any part of his body. What determines
petitioner's entitlement to permanent disability
benefits is his inability to work for more than
PAGE 14 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

120 days."[1] On the other hand, "[p]ermanent

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."

The definitive thrust of this litigation must be leaned

towards the actual state of lifetime incapacity of the complainant
Esconde to perform again his customary job as a seafarer 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
PAGE 15 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

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)

Complainant Esconde is entitled to sickwages, moral and

exemplary damages, and attorney’s fees.

On account of respondents’ refusal to declare entitlement

and pay complainant what is clearly due to him as a matter of
right, which act manifests violation of complainant Esconde’s
rights and an evident sign of bad faith on their part, respondents
must likewise be ordered to pay moral damages in favor of
complainant Esconde who, in addition to his sickness/loss of
right testis, 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.

Since it was respondents’ act of refusing to pay

complainant’s total permanent disability benefits which forced
the latter to litigate, respondents must likewise be ordered to
pay attorney’s fees equivalent to at least ten percent [10%] of the
total award in favor of complainant Esconde.
PAGE 16 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

RELIEF SOUGHT

WHEREFORE, premises considered, it is respectfully

asked of this Honorable Labor Arbitration Office that the
following be awarded in favor of complainant by ordering
respondents to pay-

1. Total Permanent Disability Pay = US$ 60,000.00 Dollars

2. Moral damages = PhP 500,000.00 Pesos
3. Exemplary damages = PhP 500,000.00 Pesos
4. Attorney’s Fees equivalent
 to 10% of total award = US$ 6,000.00 Dollars
plus 100,000 Pesos

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.

Santa Cruz, Laguna for Quezon City, 25 August 2016.

Atty. EMMANUEL E. SANDICHO

Counsel for the Complainant
nd
2 Floor GCL Bldg., 6081 National Highway
Sambat, Labuin, Santa Cruz, Laguna
4009 CALABARZON Philippines
E-mail address: attysandicho@gmail.com
IBP O.R. No. 995689, 04 January 2016, Laguna
PTR O.R. No. 2967138, 04 January 2016, Laguna
Roll No. 42246 admitted to practice, 09.05.1997
MCLE Compliance No. IV-0021894 / 04.09.2013

Republic of the Philippines )

Quezon City, Metro Manila ) s.s.
PAGE 17 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

VERIFICATION & CERTIFICATION

I, NELSON L. ESCONDE, of legal age, Filipino, married and

resident of 1028 Felix Huertas Street, Santa Cruz, Manila 1014
NCR 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

th
25 day of August 2016 in Quezon City.

NELSON L. ESCONDE
Affiant

SUBSCRIBED AND SWORN to before me this 25 August

2016 in Quezon City, Metro Manila by affiant with SSS ID No. 33-
1652335-9 issued in Manila.

Doc. No. _____;

Page No._____;
Book No._____;
Series of 2016.

Copy furnished:

ATTY. RICA C. RIVERA-LUMIBAO

Counsel for the Respondents
1103 East Tower, Philippine Stock Exhange
PAGE 18 OF 20 – POSITION PAPER (NELSON L. ESCONDE)

Center, Exchange Road, Ortigas Center

Pasig City 1605 NCR