Republic of the Philippines

Department of Labor and Employment (DOLE)

The National Conciliation and Mediation Board
The Regional Conciliation and Mediation Branch, RCMB-NCR
In Coordination with the Philippine Association
of Voluntary Arbitrators (PAVA),
THE HONORABLE OFFICE
OF THE PANEL OF MARITIME
VOLUNTARY ARBITRATORS (MVAs)
Ground Floor, DOLE Building
Intramuros, City of Manila
---------------------------------------------------------------------------
The Honorable MVA MELODY T. MONTOYA, Chairman
The Honorable MVA WALFREDO D. VILLAZOR, Panel Member
The Honorable MV A PEDRITO FAYTAREN, JR., Panel Member

In Matter of the Voluntary Arbitration Dispute Between:

JOHN KAVEN C. GONZALES, CASE NO. : MVA-073-RCMB-NCR

Complainant, 214-09-05-2023

-versus- For: Permanent Total Disability

Benefits, Damages and
Attorneys Fees.

LYDIA MAR (PHILIPPINES), INC.1,

LYDIA MAR SHIPPING CO., SA2
And MS. BRENDA V. BALDON,3
Respondents.
x...........................................................................x

COMPLAINANT’S REPLY
1
With indicated address at Suite E, 11th Floor, GE Antonio Bldg., TM Kalaw St., Ermita, Manila.
2
25 Possidonous Avenue, GR 18344 Moschato, Greece
3
Jointly impleaded as a necessary Party, Ms. Brenda being no other that the responsible Corporate Officer for
Lydia Mar (Philippines), Inc.
 TO RESPONDENTS’ POSITION PAPER

COMES NOW, Complainant-Seafarer, JOHN KAVEN C. GONZALES,

by and through the undersigned counsel, for sufficient causes of actions,
and to this Honorable Panel, most respectfully asseverates:

PREFATORY

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."4

Respondents preface their Position Paper with the trite reminder that
labor laws are not meant to be swords to oppressed the employers when they
are clearly in the right.

With due respect, this case is NOT one of those imagined cases by the
Respondents where the employers are in the right and being oppressed. It is
the other way around.

Au contraire, by awarding permanent and total benefits to Joh Kaven,

we are, in fact, serving the interest of justice.

Nothing more and nothing less.

4
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].
 It is well to note the unequivocal words of the High Court in Philippine
Transmarine Carriers, Inc. v. NLRC, 405 Phil. 487, 495 (2001), citing Wallem
Maritime Services, Inc. vs. NLRC, 376 Phil. 738, 749 (1999), viz:

“After all, the POEA-SEC 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.

In fine, we beseech this Honorable Panel to please order the payment of

permanent total disability benefits rightly due to JOHN KAVEN GONZALES,
erstwhile CHIEF COOK of MV KEFALONIA, and in line with the overriding
and more beneficent provisions of the afore-stated applicable and governing
CBA.

There was no definitive and final assessment

issued to John Kaven Gonzales by the
company doctor within the prescribed
period set by the rules.

On arrival on February 12, 2022, Complainant was referred to the

company-approved health facility, NGC Medical Clinic. The CDP, DR.
NICOMEDEZ CRUZ, treated JC conservatively. On complaint of continuing
chest pain, JC was admitted and confined to Manila Medical Center on March
25, 2022 to March 30, 2022.
 Under the law, the company doctor has 120 days from February 12,
2022 or up to June 12, 2022 within which to conduct a post-employment
medical examination and issue a disability assessment and grading.

Dr. Nicomedez Cruz issued a Certificate of Final Assessment on June 17,

2022, more than 120 days from February 12, 2022. The CDP gave a mere
Grade 7 Disability. Thereafter, the CDP abruptly ceased seeing JC.

What is obvious is that the CDP merely went through the motions and
has no sufficient justification to extend the period. The interim disability
previously issued which is a Grade 7 is in fact unchanged.

On the pretext of calling John Kaven for a follow-up, the CDP made it
appear that John Kaven was called for a follow-up on a very short notice on
June 10, 2022, which is two days before the deadline within which he must
issue a final assessment.

Obviously, the CDP was wary of the period being about to end and acted
on a subterfuge calling John Kaven for a follow-up on June 10, 2022. The alleged
follow-up call is pure canard as the previous meeting never indicated a follow-
up consultation.

What was evident is that the company physician has desperately sued
for time as he was not able to issue a final assessment to meet the deadline on
June 12, 2022. Such monumental lapse is a clear abdication of the positive
duty given to Dr. Nicomedes Cruz.

Here, the law has effectively stepped in to break the impasse and
whatever disability Joh Kaven had, the same has been effectively transformed
to one that is total and permanent.
 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.

John Kaven had timely contested the findings

of the company physician. The disparate
medical opinions have to be resolved on
their inherent merits and the courts and
labor tribunal are called not to simply
embraced the findings of the company
physician as gospel truth.

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.

We respectfully submit that JOHN KAVEN C. GONZALES suffers from

Permanent Total Disability by reason of “Hypertensive Heart Disease,
Coronary Artery Disease, s/p Coronary Andioplasty (January 2022) with
residual myocardial infarction. Heart failure with reduced ejection
fraction” and that he is very much entitled to Permanent Total Disability
Benefits as per CBA provisions on disability compensation by reason of an
accident at sea.

Too, it is likewise respectfully submitted that Damages and Attorneys’

Fees are recoverable as part of the judgment award.

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."5

Fil-Star Maritime Corp. v. Rosete 6 formulated the classic definition of

what constitutes total disability.

Thusly:

5
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].

6
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.

Permanent disability, on the other hand, is

a worker's inability to perform his or her job for
more than 120 days, or 240 days if the seafarer
required further medical attention justifying the
extension of the temporary total disability
period, regardless of whether or not he loses the
use of any part of his body.7

Conversely, it might not be amiss to state that, too, in Belchem

Philippines, Inc. v. Zafra, Jr.,8 the Supreme Court held that:

[P]ermanent partial disability presupposes

a seafarer's fitness to resume sea duties before
the end of the 120/240-day medical treatment
period despite the injuries sustained. The
premise is that such partial injuries did not
disable a seafarer to earn wages in the same kind
of work or similar nature for which he was
trained.9

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

7
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].
8
759 Phil. 514 (2015).
9
Same Case citation at page 526 thereof.
David v. OSG Ship Management Manila, Inc., the high court did not mince
words holding as follows:

It is sufficient that there is a reasonable

linkage between the disease, ailment or injury
suffered by the employee and his work to lead a
rational mind to conclude that his work may
have contributed to the establishment or, at the
very least, aggravation of any pre-existing
condition he might have had.10

Point in fact, the Second Medical Report gives an unembellished account

of the unenviable health condition of JC:

“Hypertensive Heart Disease,

Coronary Artery Disease, s/p Coronary
Andioplasty (January 2022) with residual
myocardial infarction. Heart failure with
reduced ejection fraction.”

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.

Notwithstanding the medical intervention provided by the

Respondents’ health facility and provider at NGC Hospital , Manila with the

10
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.
duly designated company physician, Complainant remains incapacitated to
work.

His ability, therefore, to work as a seafarer is ineluctably compromised,

rendering him totally and permanently UNFIT to work.

For this reason, Complainant respectfully asked Respondents for

Permanent Total Disability Benefits under the applicable CBA.

In fine and without an iota of doubt, the

permanent total disability of seafarer John
Kaven C. Gonzales is clear, apparent,
unmistakable and, nay, incontrovertible.

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
incorporation11 to the actual contract, the Contract of Employment,

11
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:

Laws are deemed incorporated in employment

contracts and the contracting parties need not repeat
them. They do not even have to be referred to. Every
contract, thus, contains not only what has been
explicitly stipulated, but also the statutory provisions
that have any bearing on the matter.
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.

Another fundamental legal truism is the principle that disability

compensation put less importance and less understood on the medical
significance of the injury or ailment, and more on the legal signification of the
resulting disability: that, henceforth, the claimant’s resulting disability
impacts and impairs his capacity to earn a gainful work, work that is
customary for him and which he is accustomed to doing before the disability
transpired and, necessarily, it involves such works which the seafarer-
claimant has been trained for.

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
medical findings have become passé.

The more correct rule is that the courts and labor tribunals are not
bound by the medical findings because they are ordained to look and inquire
as to the real condition of the seafarer. In which case, the rule of thumb is to
delve and weigh the inherent merits of the contentious medical opinions. They
are to be appraised based on their inherent merits.

Entitlement of John Kaven to Disability

Benefits pursuant to the more beneficent
provisions of the CBA.

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:
 “A seafarer who suffers permanent disability
but excluding permanent disability due to wilful
acts, shall in addition to sick pay, be entitled to
compensation according to the provisions of this
Agreement.”

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.

According to the CBA, both the disability assessment and the

certification as permanently unfit for sea service are to be given by the
company-designated physician. Under the the provisions of the POEA_SEC,
necessarily read into the contract, these can be overruled by a third
doctor jointly appointed by the company and the union, in the event that
the seafarer’s personal physician disagrees with the evaluations of the
company-designated physician.

Section 20(B)(3) of the POEA-SEC provides a similar mechanism for

determining the disability assessment.

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.

In Remigio v. NLRC,12 the Court held:

The standard employment contract for

seafarers was formulated by the POEA pursuant
to its mandate under E.O. No. 247 to “secure the

12
521 Phil. 330 (2006).
 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.” Section 29 of the 1996 POEA SEC
itself provides that “[a]ll 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
conditions, hours of labor and similar subjects.”

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.

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 one’s earning capacity.13

The pertinent Labor Code provision is found in Article 192(c)(1),

Chapter VI, Title II, Book IV:

Art. 192. Permanent and total disability.

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 days, except as
otherwise provided for in the Rules[.] (Emphasis
supplied)

The corresponding provision in the AREC is Section 2(b) of Rule VII

which reads:

SECTION 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. (Emphasis
supplied)

13
521 Phil. 330 (2006).
 The above rule pertains to Section 2, Rule X of the AREC:

SECTION 2. Period of entitlement. (a) The

income benefit shall be paid beginning on the first
day of such disability. If caused by an injury or
sickness it shall not be paid longer than 120
consecutive days except where such injury or
sickness still requires medical attendance
beyond 120 days but not to exceed 240 days
from onset of disability in which case benefit for
temporary total disability shall be paid.
However, the System may declare the total and
permanent status at any time after 120 days of
continuous temporary total disability as may be
warranted by the degree of actual loss or
impairment of physical or mental functions as
determined by the System. (Emphasis supplied)

These provisions, in conjunction with Section 20(B)(3) of the POEA-SEC,

were interpreted in the case of Vergara v. Hammonia Maritime Services,
Inc.14 thus:

As these provisions operate, the seafarer,

upon sign-off from his vessel, must report to the
company-designated physician within three (3)
days from arrival for diagnosis and treatment. For
the duration of the treatment but in no case to
exceed 120 days, the seaman is on temporary total
disability as he is totally unable to work. He
receives his basic wage during this period until he is
declared fit to work or his temporary disability is
acknowledged by the company to be permanent,
either partially or totally, as his condition is defined

14
588 Phil. 895 (2008).
 under the POEA Standard Employment Contract
and by applicable Philippine laws. 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. The seaman may of
course also be declared fit to work at any time such
declaration is justified by his medical
condition. (Emphasis supplied)
15

Hence, a partial and permanent disability could, by legal

contemplation, become total and permanent.

The Court could have not been way clearer on this point in Kestrel
Shipping Co., Inc. v. Munar16 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:

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
15
588 Phil. 895 (2008).
16
G.R. No. 198501, 30 January 2013, 689 SCRA 795.
 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.

Moreover, the company-designated

physician is expected to arrive at a definite
assessment of the seafarer’s fitness to work or
permanent disability within the period of 120 or
240 days. That should he fail to do so and the
seafarer’s medical condition remains
unresolved, the seafarer shall be deemed totally
and permanently disabled.17 (Emphasis
supplied)

Assessment of Disability Grading that is inappropriately not issued and

not furnished to ROY.

The duty of the company-designated physician to issue a final and

definitive assessment of the seafarer's disability within the prescribed periods
is imperative. His failure to do so will render his findings nugatory and
transform the disability suffered by the seafarer to one that is permanent and
total.

17
G.R. No. 198501, 30 January 2013, 689 SCRA 795.
 As explained by the Court in Pelagio v. Philippine Transmarine
Carriers, Inc:18

Otherwise stated, the company-designated

physician is required to issue a final and definite
assessment of the seafarer's disability rating within
the aforesaid 120/240-day period; otherwise, the
opinions of the company-designated and the
independent physicians are rendered
irrelevant because the seafarer is already
conclusively presumed to be suffering from a
permanent and total disability, and thus, is entitled
to the benefits corresponding thereto.

Similarly, in Olidana v. Jebsens Maritime, Inc.,19 the Court declared as

follows:

x x x The Court in Kestrel Shipping Co., Inc. v.

Munar, 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.:
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
18
G.R. No. 231773, March 11, 2019.
19
722 Phil. 234 (2015).
 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.

Moreover, the company-designated physician

is expected to arrive at a definite assessment of the
seafarer's fitness to work or permanent disability
within the period of 120 or 240 days. That should
he fail to do so and the seafarer's medical condition
remains unresolved, the seafarer shall be deemed
totally and permanently disabled.20

Here, JC was seen as outpatient for a

period of MORE THAN 120 DAYS without
sufficient justification to extend the period,
the company doctors having done no
significant action but merely going through
the motions. No definitive, complete and
final assessment was given, furnished and
explained to him.

Applying the foregoing rules in the present case, the company-

designated physician was unable to timely issue a final assessment. The
seafarer was repatriated last February 12, 2022. The Certificate of Final
Medical Assessment issued by Dr. Nicomedes Cruz was on June 17, 2022.
Crystal, more than 120 days have gone by.

20
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.

Certainly, the unfitness and continuing disability is clear and apparent.

No amount of legal sophistry could controvert this point. Following the
Court’s rulings in Vergara and Kestrel, since John Kaven’s further medical
treatment duration beyond the 120 day period was not sufficiently justified,
his total and temporary disability was unduly and unnecessarily extended.

The company-designated physician then had until 240 days from

repatriation to give the final assessment. Unfortunately, the company doctor
did not issue one which is final and definitive as required by the rules.
 Indeed, the schedule of disabilities in the CBA, if there is one, or the
POEA-SEC, should be the primary basis for the determination of a seafarer’s
degree of disability. However, the POEA-SEC and the CBA cannot be read in
isolation from the Labor Code and the AREC. Otherwise, the disability
rating of the seafarer will be completely at the mercy of the company-
designated physician, without redress, should the latter fail or refuse to
give one.

Here, the company-designated physician failed to give a definitive

assessment on the disability beyond the extended temporary disability period,
after the 120-day period but less than 240 days. There was no Medical
Certificate stating a disability or fit to work assessment and, most importantly,
duly explained to the complainant. In the absence of a medical report that is
definitive and final as required by law, the disability, to all intents and
purposes has become permanent and total.

By operation of law, therefore, John Kaven Gonzales’ total and

temporary disability lapsed into a total and permanent disability. 21

Even beyond the 120-day extension contemplated in Vergara, John

Kaven was still incapacitated to perform his usual sea duties as he was still
undergoing medical treatment and in fact consulted with Dr. Antonio Pascual
and, presently, continues taking at home the prescribed medications and he
remains subjected to continuous medical management.

JOHN KAVEN cannot resume his customary

work as chief cook since he was rendered
21
Libang v. Indochina Ship Management, Inc., G.R. No. 189863, 17 September 2014.
ineffective and forbidden to carry out
strenuous and physical hard work due to his
grievous CORONARY ARTERY DISEASE.

Verily, John Kaven cannot work effectively and without extreme

discomfort , pain and difficulty and his frail and weakened condition all the
more leaves him vulnerable.

In C.F. Sharp Crew Management, Inc. v. Taok,22 the Court held:

Based on this Court’s pronouncements in

Vergara, it is easily discernible that the 120-day or
240-day period and the obligations the law imposed
on the employer are determinative of when a
seafarer’s cause of action for total and permanent
disability may be considered to have arisen. Thus, a
seafarer may pursue an action for total and
permanent disability benefits if: (a) the company-
designated physician failed to issue a declaration as
to his fitness to engage in sea duty or disability even
after the lapse of the 120-day period and there is no
indication that further medical treatment would
address his temporary total disability, hence, justify
an extension of the period to 240 days; (b) 240 days
had lapsed without any certification being issued by
the company-designated physician; (c) the
company-designated physician declared that he is
fit for sea duty within the 120-day or 240-day
period, as the case may be, but his physician of
choice and the doctor chosen under Section 20-B(3)
of the POEA-SEC are of a contrary opinion; (d) the
company-designated physician acknowledged that
he is partially permanently disabled but other
22
G.R. No. 193679, 18 July 2012, 677 SCRA 296.
 doctors who he consulted, on his own and jointly
with his employer, believed that his disability is not
only permanent but total as well; (e) the company-
designated physician recognized that he is totally
and permanently disabled but there is a dispute on
the disability grading; (f) the company-designated
physician determined that his medical condition is
not compensable or work-related under the POEA-
SEC but his doctor-of-choice and the third doctor
selected under Section 20-B(3) of the POEA-SEC
found otherwise and declared him unfit to work; (g)
the company-designated physician declared him
totally and permanently disabled but the employer
refuses to pay him the corresponding benefits;
and (h) the company-designated physician
declared him partially and permanently
disabled within the 120-day or 240-day period
but he remains incapacitated to perform his
usual sea duties after the lapse of the said
periods.45 (Emphasis supplied)

Clearly, whatever assessment made by the company doctor is an

interim one. Not that final and definitive declaration required by law. 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.

As discussed above, the determination of the fitness of a seafarer for sea

duty is the province of the company-designated physician, subject to the
periods prescribed by law.
 Nevertheless, John Kaven’s disability is deemed total and permanent
due to the total absence and lack of a final disability assessment and of a
certification of fitness for sea service from company physician, required to be
duly explained and furnished to him.

In fine, no sane and enterprising shipping company would ever hire

Complainant, by reason of his very disabling and debilitating conditions. His
“Hypertensive Heart Disease, Coronary Artery Disease, s/p Coronary
Andioplasty (January 2022) with residual myocardial infarction. Heart
failure with reduced ejection fraction”, all in all, is technically absolute
helplessness on the part of John Kaven to resume his work and duties as chief
cook of a merchant vessel.

Clearly, on the inherent merits of the clashing medical opinions, that of

Dr. Antonio Pascual stands out.

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.

Here, the Respondents took and voluntarily

assumed the risk when Complainant was
certified fit during the PEME without no pre-
existing condition. Although the employer is
not the insurer of the health of his
employees, he takes them as he finds them
and assumes the risk of liability.
 Of vital significance, although the employer is not the insurer of the
health of his employees, he takes them as he finds them and assumes the
risk of liability.23

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."24

The compensability and apparent permanent disability having been

established, the opinion of the company-designated doctor no longer holds
any particular significance. It is already idle to discuss whether his views or
those of the seafarer’s physician should carry more weight, where it appears
by the evidence that the knee injuries and the resulting disability are, in fact,
compensable as permanent total disability.

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.

23
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).
24
David v. OSG Ship Management Manila, Inc., supra
 In fact, it allows a third opinion in case the seafarer’s doctor disagrees
with the assessment of the company-designated physician. Therefore, the
provision 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.

Moral and Exemplary Damages

and Attorney’s Fees

There is more than enough basis to award damages and attorney’s fees.

The same may be awarded as Respondents acted jointly and in concert,

and in gross and evident bad faith in refusing to satisfy plaintiff’s plainly valid,
just and demandable claim.

Here, Respondents manifestly 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 for him to seek a gainful employment.
 PRAYER
FOR AFFIRMATIVE RELIEFS

WHEREFORE, BECAUSE OF THE FOREGOING PREMISES, it is

respectfully prayed that the Complainant’s claim for TOTAL AND
PERMANENT DISABILITY BENEFITS will now please be GRANTED in favor
of Complainant.

ACCORDINGLY, it is hereby prayed that JUDGMENT be rendered

declaring Complainant as totally and permanently disabled and herein
Respondents be made to pay jointly and severally the following amounts:

1. ONE HUNDRED THOUSAND US DOLLARS (US$ 100,000.00)

representing payment of Complainant’s Total and Permanent
Disability benefits,

2. FIFTY THOUSAND PESOS (Php50,000.00) by way of moral

damages, and

3. TEN PERCENT (10%) of the total judgment award as Attorneys’

Fees.

OTHER RELIEFS, just and equitable under the premises, are likewise
prayed for.

RESPECTFULLY SUBMITTED this 25th day of August 2023 at the City

of Manila, Philippines.
 A. M. BURIGSAY LAW OFFICE
& ASSOCIATES
Counsel for the Complainant
Room 310, Trinity Building
Kalaw Avenue, Ermita,
Manila City

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:

ATTY. RUBEN JOSE DEL ROSARIO, JR.

DEL ROSARIO AND DEL ROSARIO LAW
Counsel for the Respondents
Del Rosario Law Center
Bonifacio Drive
Taguig City, Metro Manila

EXPLANATION:

Due to distance and for lack of office personnel to effect personal

service, a copy of the foregoing REPLY was served by registered mail to the
respondents’ counsel.
.
ARNOLD M. BURIGSAY