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John Kaven Disability Complaint Vs Lydia Mar
John Kaven Disability Complaint Vs Lydia Mar
PROLOGUE
4
G.R. No. 198528; October 13, 2014; Titled, “MAGSAYSAY MITSUI OSK MARINE, INC.
and/or MOL TANKSHIP MANAGEMENT (ASIA) PTE LTD., Petitioners, vs. JUANITO G.
BENGSON , Respondent
*
5
Meaning, the Court’s [unanimous or majority opinion.
“Time and again, this [Supreme] Court
has held that cardiovascular disease,
coronary artery disease, and other heart
ailments are work-related and, thus,
compensable.”
NATURE AND
OBJECT OF THE PRESENT COMPLAINT
In other words, the parties were all told to please dispense with further
conferences, meetings and hearings and, instead, that the panel is setting the
instant case for the submission of the respective Position Papers (Reply and
Rejoinder, whenever appropriate to the adverse Party’s corresponding
pleadings.
The significance of the ordered submissions signify that the instant case
is now at the cusp of being finally adjudged and resolved by the Panel via the
consequent promulgation of a Voluntary Arbitration Judgment.
THE FACTS
6
POEA-validated on even date.
3. The Contract of Employment made reference to the governing Collective
Bargaining Agreement, which it referred to as FITCISL (hereafter, CBA
for brevity and marked as ANNEXES B and SERIES hereof)
5. Subsequently, on March 31, 2021, he was then deployed and joined the
assigned vessel, working thereat as CHIEF COOK.
7
Chief cook - Wikipedia, last visited on the web on August 07, 2023.
11. In the course of the voyage of the vessel MV KEFALONIA and on
January 19, 2021, Complainant, while working aboard as CHIEF COOK
was then making his routine monitoring activity on his work station on
the vessel.
12. While he was doing such routine work, he had a sudden onset of
cold clammy skin and nausea. Thereafter, he momentarily lost
consciousness but later revived. On January 21, 2022 he was medically
evacuated and sent to the nearest port at Greece.
“Diagnosis:
Remarks:
21. Complainant still feels discomfort and chest pain Copies of the
Complainant’s treatment reports by the CDP at NGC Hospital, are all
hereto attached and marked as ANNEXES D and SERIES.
23. Moreover, the Complainant was not even told the status of his
illness. He was only told to wait for the call of the Respondents which
call never came.
24. Left with no choice but to tend to his medical needs and
notwithstanding the declaration of the company doctor, he sought the
opinion of DR. ANTONIO PASCUAL.
31. Moreover, it was only during the mandatory conferences that the
Complainant was informed of the disability grading issued by the CDP.
ISSUE
ARGUMENTS,
DISQUISITION AND CONFABULATION
It is well to point out 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."8
Thusly:
8
Please see the Supreme Court Decisions in Remigio v. National Labor Relations Commission, 521 Phil. 330, 347
(2006) [Per J. Puno, Second Division) citing Philippine Transmarine Carriers v. NLRC, 405 Phil. 487 (2001) [Per J.
Quisumbing, Second Division].
9
677 Phil. 262 (2011) [Per J. Mendoza, Third Division].
Total disability refers to an employee's
inability to perform his or her usual work. It does
not require total paralysis or complete
helplessness.
We hasten to add that settled is the rule that for illness or injury to be
compensable, it is not necessary that the nature of the employment be the sole
and only reason for the injury and disability suffered by the seafarer. Thus, in
10
Kindly see Sunit v. OSM Maritime Services, Inc., G.R. No. 223035, February 27, 2017 <
http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2017/february2017/223035.pdf > [Per J.
Velasco, Third Division). See also Fair Shipping Corp. v. Medel, 693 Phil. 516 (2012) [Per J. Leonardo-De Castro, First
Division].
11
759 Phil. 514 (2015).
12
Same Case citation at page 526 thereof.
David v. OSG Ship Management Manila, Inc., the high court did not mince
words holding as follows:
13
David v. OSG Ship Management Manila, Inc., G.R. NO. 197205, September 26, 2012, citing Nisda v. Sea Serve
Maritime Agency, G.R. NO. 179177, July 23, 2009, 593 SCRA 668, 699; NYK-Fil Ship Management v. Talavera, G.R.
NO. 175894, November 14, 2008, 571 SCRA 183, 198.
There can be no question that the disability of JC stemmed from an
ailment which arose and developed while he was working aboard MV
KEFALONIA as Chief Cook.
Disability claims cases are not so unique that each case is resolved on
varying standards and rules. They are resolved under uniform and well-
delineated legal principles and rules culled from statutes as well as those
enunciated in salutary decisions that the Court deigns not to disturb or alter
later on.
Disability claims are determined by law, the contracts and the medical
findings. To take a leaf from the Court’s myriad decisions, the entitlement or,
conversely, the non-entitlement, of a seafarer to disability claims is not only
governed by the medical findings, but by law (the Labor Code) and the terms
of the contract executed between and among them: the POEA-SEC by
incorporation14 to the actual contract, the Contract of Employment,
Employment Agreements, and, last but not the least, the Collective Bargaining
Agreement, if there is any in effect and governing the parties in the course of
the employment.
Courts and labor tribunals are not bound by the medical findings of the
company physician such that the repetitive arguments of manning agencies
that the company-designated physician is more controlling than any other
14
That all provisions of the POEA-SEC are standard and deemed integral part of any contract of employment
binding the parties to at least comply with barest minimum terms and conditions deemed acceptable by law, and
case law and as updated by timely revisions made by the regulatory body, the POEA-SEC. This is to ensure that the
minimum terms and standards for all contract of employment, minimum labor standards and terms of
employment, are adhered to by the parties to the contract and, obviously, on the consideration and concern that
the worker is not put into disadvantage. The Court has aptly stated:
The rules require that the medical assessment must be final, complete
and definitive and, as currently stands, adhere to the 120/240 window
evolved in Kestrel and Vergara and the twin requirements in Dario Carcedo vs
Maine Marine. Failure and shortcomings from any of the foregoing
requirements, perforce, the law is deemed to effectively step in to fill the void,
characterizing whatever disability that the seafarer has, into one that is
Permanent and Total. The requirements are deemed built-in safeguards to
dissuade a situation where the company doctor can simply defeat the claims if
the time to issue when is entirely dependent on him. In which case, the doctor
may just simply sit back idly and issue no medical report at all, all the while
putting the seafarer to an interminable waiting game.
The seafarer has the statutory and substantial right to contest the
findings and he may seek a second opinion from a specialist of his own
choosing. In such classic impasse, where the first clash with the second, the
seafarer is obliged to contest anew the first medical report by initiating the
third doctor process in the hope that the third opinion will confirm the second
medical opinion.
Where the third medical opinion did not come about due to the failure
of the claimant to initiate one, the courts are bound to uphold the first medical
opinion.
Even if the claimant failed to seek a third opinion, the court may not
uphold the first medical opinion simply as the gospel truth. Where it is
attended by apparent bias, where the conclusions are unsupported, or when
the findings are sham and merely intended to co-opt the wishes of the
employer, there is no rule forbidding the court or tribunal from junking the
first medical opinion, and, on the basis of the inherent merits, upheld the
opinion of the private specialist.
Entitlement to
Disability Benefits
A contract is the law between the parties, which in this case are the CBA
and the POEA-SEC. The CBA contains the following pertinent medical and
disability provisions:
Based on the CBA, there are three instances when a seafarer may be
entitled to 100% disability compensation. These are: (1) when the seafarer is
declared to have suffered 100% disability; (2) when the seafarer is assessed
with disability of at least 50%; and (3) when the seafarer, while assessed at
below 50% disability, is certified as permanently unfit for sea service.
However, it is not only the contract between the parties that governs the
determination of the disability compensation due the seafarer. The Court has
ruled that the provisions on disability of the Labor Code and the Amended
Rules on Employee Compensation (AREC) implementing Title II, Book IV of
the Labor Code are applicable to the case of seafarers.
Thus, the Court has applied the Labor 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.
x x x x
SECTION 2. Disability. x x x
16
521 Phil. 330 (2006).
The above rule pertains to Section 2, Rule X of the AREC:
17
588 Phil. 895 (2008).
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. The seaman may of
course also be declared fit to work at any time such
declaration is justified by his medical
condition. (Emphasis supplied)
18
The Court could have not been way clearer on this point in Kestrel
Shipping Co., Inc. v. Munar19 which held that the declaration by the company-
designated physician is an obligation, the abdication of which transforms the
temporary total disability to permanent total disability, regardless of the
disability grade, viz:
18
588 Phil. 895 (2008).
19
G.R. No. 198501, 30 January 2013, 689 SCRA 795.
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.
20
G.R. No. 198501, 30 January 2013, 689 SCRA 795.
As explained by the Court in Pelagio v. Philippine Transmarine
Carriers, Inc:21
23
Id. at 251.
We cannot simply agree that the haphazardly issued Certificate of Final
Assessment made by the company-designated doctor, is the Medical Report
that is definitive, complete and final as contemplated by the rules.
To our mind, the said disability assessment was an interim one because
JOHN KAVEN, in fact continued to require medical treatments and
management that extended even after his treatment with the CDP and that he
was still being prescribed heart medications by Dr. Antonio Pascual way
beyond six months after repatriation.
Verily, he was certainly still under total disability at that time and, even
at present, he has not been able to resume seafaring work of any kind.
We can all easily agree that his disability is a Permanent Total Disability.
Despite his medical treatment at the hands of the company physicians, the
treatment and at home medications extended to beyond six months from
repatriation.
24
Libang v. Indochina Ship Management, Inc., G.R. No. 189863, 17 September 2014.
JOHN KAVEN cannot resume his customary work as chief cook since
he was rendered ineffective and forbidden to carry out strenuous and
physical hard work due to his grievous CORONARY ARTERY DISEASE.
It did not include a certification that JC was already fit for sea duty. And
even if it had, it would be belied by the fact of the continuation of medical
treatments and continuation of medication that JC underwent when he sought
consultation at the clinic of Dr. Pascual, long after the cessation of the medical
evaluation and management by the company-designated physician at NGC
HOSPITAL.
Indeed, John Kaven continues to suffer to this very day a Permanent and
Total Disability and, by all means, he is entitled to the allowable maximum
benefits under the prevailing CBA.
Disability Compensation
26
Fil-Star Maritime Corporation v. Rosete, G.R. No. 192686, November 23, 2011, 661 SCRA 247, 255, citing Seagull
Shipmanagement and Transport, Inc. v. NLRC, 388 Phil. 906, 914 (2000), citing More Maritime Agencies, Inc. v.
NLRC, 366 Phil. 646, 654-655 (1999).
The quantum of evidence required in labor cases to determine the
liability of an employer for the illness or injury suffered by an employee under
the POEA-SEC is not proof beyond reasonable doubt but mere substantial
evidence or "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."27
Section 20 (B)
x x x x
This is precisely a remedy that Chief Cook John Kaven pursued when he
engaged the services of a private specialist and contested the assessment of
the company doctor which was never embodied in a complete and definitive
report. Let alone such report adequately explained to him.
The POEA-SEC provisions should not be
construed that it is only the company-
designated physician who could assess the
condition and declare the disability of
seamen. The provision does not serve as a
limitation but rather a guarantee of
protection to overseas workers.
Most apropos, the company doctor has committed abject failure to issue
a complete and definitive medical report and, in the process, failing to give a
clear assessment and fitness for seafaring work of John Kaven.
Verily, the law has already stepped in and whatever disability Chief
Cook John Kaven Gonzales had, by legal fiction, has now been transmogrified
to a permanent and total one. Without doubt, this is irrefutable from the
records.
Here, Respondents acted in bad faith because they in fact abandoned the
helpless and ailing Joh Kaven to deal on his own and with the resulting
inability to seek a gainful employment.
PRAYER
FOR AFFIRMATIVE RELIEFS
By:
ARNOLD M. BURIGSAY
IBP No. 260805 January 5, 2023
PTR NO. 0862689
January 4, 2023; Manila
Roll No. 43265
MCLE No. VII- 0028015
April 14, 2023; Pasig City
Tel No. 564-49-00/6646124
amburigsaylaw@gmail.com
Copy Furnished:
ARNOLD M. BURIGSAY