Republic of the Philippines

DEPARTMENT OF LABOR AND EMPLOYMENT

REGIONAL CONCILIATION AND MEDIATION BOARD
PHILIPPINE ASSOCIATION OF VOLUNTARY ARBITRATORS
Intramuros, Manila

OFFICE OF THE PANEL OF MARITIME

VOLUNTARY ARBITRATORS
MVA MELODY T. MONTOYA, CHAIRMAN
MVA WALFREDO D. VILLAZOR, MEMBER
MVA GEORGE A. EDUVALA, MEMBER

IN RE VOLUNTARY ARBITRATION
CASE BETWEEN:

GARRY DELOSO BASA

Complainant, MVA-073-RCMB-NCR-300-17-07-2023

---VERSUS---

BSM CREW SERVICE CENTRE,

PHILIPPINES, INC., BERNHARD
SCHULTE SHIP
MANAGEMENENT (SINGAPORE)
PTE LTD., and MR. NARCISSUS
DURAN,
Respondents.
X……………………………………….X

COMPLAINANT’S
REJOINDER

COMES NOW, COMPLAINANT GARRY DELOSO BASA by and

through the undersigned counsel, and to this Honorable Panel, by
way of rejoinder, most respectfully states:

1. As could be gleaned from their REPLY, Respondents contend

the following rehashed arguments:

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1.1. Complainant cannot rightfully demand disability benefits
considering that the Company Doctor declared him fit to
work,
1.2. The Second Medical Opinion cannot overcome the First
Medical Opinion, and
1.3. Respondents have not committed acts that warrant the
ward of moral damages, exemplary damages and attorneys’
fees.

2. Respondents’ proffered arguments are without merit.

3. There can be no quarrel that the Complainant, through no fault

of his own, figured in an unforeseen and injurious accident
aboard the vessel.

4. The incident of the garbage compactor becoming suddenly out

of whack, thereby causing fracture-injuries to Complainant
that turned out to be long lasting and greatly diminished
Complainant’s efficiency in his customary work as Able
Seaman readily shows that what transpired is clearly an
injurious accident.

5. Here, the Complainant’s hand got stuck and was “eaten,”

and/or injured when a component of the Garbage Compactor
appears to have malfunctioned. Whatever contraption of the
garbage compactor that facilitated it to act out of hand,
leading to giving Complainant his hand injuries, the
Respondents cannot now simply brush aside as of no moment.

6. Must the Respondents and their Foreign Principal took

chances and enlist anew Complainant who is essentially
hindered by close fractures of the hands? They would not do

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 such thing, especially when the injury and the disability
is clearly apparent and unmistakable.

7. On this score, Complainant’s entitlement to an award of

Permanent Total Disability, Benefits and Damages is
undeniable.

THE ESSENTIAL ISSUES

8. There is an imperative need for the Honorable Panel to

squarely resolve the following material issues:

1. WHETHER THE INJURY IS THE RESULT OF

AN INJURIOUS ACCIDENT.

2. WHETHER THE INJURY AND RESULTING

DISABILITY WARRANTS THE AWARD AND
PAYMENT OF PERMANENT TOTAL DISABILITY
IN FAVOR OF COMPLAINANT-SEAFARER.

3. WHETHER THE CBA PROVISIONS GRANTING

THE MAXIMUM AMOUNT FOR A JUNIOR
OFFICER BE APPLIED BY THE PANEL IN
COMING UP WITH THE AMOUNT OF THE
AWARD IN PAYMENT OF THE BENEFITS TO
BASA AND IN LIEU OF THE COUNTERPART
AMOUNTS PROVIDED UNDER THE POEA-SEC.

4. WHETHER DAMAGES ARE ALSO

RECOVERABLE.

Basa was injured and it was

due to an accident that
occurred on the vessel.

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 9. The entitlement of a seafarer to disability compensation is
governed by the law, the contract and the medical findings. On
matters of law, the governing law in seaman’s compensation
includes the Labor Code.

10. Under the Labor Code, the following operational

definitions are apropos in this case:

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
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.1

11. The Supreme Court has consistently applied the aforesaid

disability concepts of the Labor Code in resolving disability
claims cases of seafarer.

12. It is well to point out that in disability compensation, "it

is not the injury or ailment which is compensated, but rather
it is the incapacity to work resulting in the impairment of one's
earning capacity."2 Fil-Star Maritime Corp. v. Rosete3
formulated the classic definition of what constitutes
permanent total disability. Thusly:

Total disability refers to an employee's

inability to perform his or her usual work. It
does not require total paralysis or complete
helplessness.

1
TEODORO vs. TEEKAY SHIPPING PHILIPPINES, G.R. no. 244721, February 5, 2020.
2
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].
3
677 Phil. 262 (2011) [Per J. Mendoza, Third Division].

4
 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.4

13. Conversely, in Belchem Philippines, Inc. v. Zafra,

Jr.,5 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.6

14. Here, there can be no question that, by reason of an

unforeseen and injurious accident, Basa’s right hand
sustained serious injuries and the permanent total disability
resulting from these injuries leaves him practically inutile and
powerless to perform the customary work of an able-bodied
seaman.

15. While Garry Basa was doing laborious and routine acts of
maintenance works aboard the vessel and while he is at that
time being at work as ABLE SEAMAN of the Respondents’
vessel, his hand got stuck inside the mechanical Garbage
Compactor.

4
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].
5
759 Phil. 514 (2015).
6
Same Case citation at page 526 thereof.

5
 16. The hand injuries and the resulting disability were
brought about by the accidental malfunction of the garbage
compactor which suck and stuck his hand inwards and while
he was doing laborious and routine acts of maintenance works
aboard the vessel and while he is at that time being at work as
ABLE SEAMAN. of the respondents’ vessel.

Entitlement to disability
benefits on account of
occupational accident and
injury.

17. A contract is the law between the parties, which in this

case are the CBA and the POEA-SEC

18. The CBA provides that both the disability assessment

and the certification as permanently unfit for sea service are to
be given by the company-designated physician.

19. Under the the provisions of the POEA_SEC,

necessarily read into the contract and the CBA, 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.

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

mechanism for determining the disability assessment.

21. 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

6
 Employee Compensation (AREC) implementing Title II, Book IV
of the Labor Code are applicable to the case of seafarers.

22. In Remigio v. NLRC,7 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
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.”

23. Thus, the Court has applied the Labor Code concept of
permanent total disability to the case of seafarers. In one
instance, 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. Says,
the Supreme Court:

“Consistently the Court has ruled that

"disability should not be understood more on its
medical significance but on the loss of earning

7
521 Phil. 330 (2006).

7
 capacity. Permanent total disability means
disablement of an employment to earn wages in
the same kind of work, or work of similar nature
that [he] was trained for on accustomed to
perform, or any kind of work which a person of
[his] mentality and attainment could do. It does
not mean absolute helplessness."5 In disability
compensation, we likewise held, 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

In insisting on the
assessment of fitness by the
Company-Designated
Physician, Respondents
utterly lose sight of the
applicability of the Labor
Code provisions providing
the definition and concept of
permanent total disability.

24. The interplay of the provisions of the Labor Code and

that of the AREC, when taken together, speaks of a temporary
total disability which canl transcend to a permanent total
disability.The pertinent Labor Code provision is found in
Article 192(c)(1), Chapter VI, Title II, Book IV:

Art. 192. Permanent and total disability.

xxxx

(c) The following disabilities shall be deemed total

and permanent:

(1) Temporary total disability lasting continuously for

8
Bejerano vs. ECC, supra, citing Ulibas vs. Republic, 83 SCRA 819 (1978); Roma vs. WCC, 80 SCRA 170 (1977).

8
 more than one hundred twenty days, except as
otherwise provided for in the Rules[.] (Emphasis
supplied)

25. 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)

26. 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)

The Company-designated
Physician has not issued a
final and definitive
assessment of Garry in
accordance with the
prescribed period.

27. Applying the foregoing rules in the present case, the

company-designated physician was unable to timely issue a
final assessment. We cannot simply agree that the
9
 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.

28. To our mind, the said disability assessment was an

interim one because Garry, in fact, continues to require
medical treatments and management that extended even
after his treatment with the company-designated
physician and that he was still being examined way
beyond six months after repatriation.

29. Ergo, the award of Permanent Total disability benefits

that is in accordance with the maximum amount in the CBA is
very much in order.

The Complainant’s claim

of unfitness is the stark
and naked truth, not a
mere fabrication as
claimed by the
Respondents.

30. The unfitness and disability of Basa is clearly apparent

from the medical records. Hence, it cannot be simply
denigrated as mere fabrication.
31. One thing more, the first medical report which is
obviously tilted to favour the interest of the respondents is, in
a long line of cases, not the be-all and end-all of the disability
claims of the seafarer.

10
 The Honorable Panel
cannot accept blindly and
as gospel truth the first
medical report. Especially
when it is obviously
biased and apparently
inclined to cater to the
whims of the
Respondents-Employers.

32. As worded in case laws, the findings of the company

doctor is not deemed as the alpha and omega of the
disability claim of the seafarer:9

In Marlow Navigation Philippines, Inc. v.

Osias this Court expounded on thel20-day and
240-day periods, thus:

As early as 1972, the Court has defined

the term permanent and total disability in the
case of Marcelino v. Seven-Up Bottling Co. of the
Phil, in this wise: "[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 other kind of work
which a person of his mentality and attainments
could do."

The present controversy involves the

permanent and total disability claim of a specific
type of labourer - a seafarer. The substantial rise
in the demand for seafarers in the international

9
G.R. No. 219123. September 11, 2017 ;DESIDERIO C. CUTANDA, PETITIONER, V. MARLOW NAVIGATION PHILS.,
INC., AND/OR MARLOW NAVIGATION CO. LTD. AND/OR ANTONIO GALVEZ, JR., RESPONDENTS.

11
labor market led to an increase of labor
standards and relations issues, including claims
for permanent and total disability benefits. To
elucidate on the subject, particularly on the
propriety and timeliness of a seafarer's
entitlement to permanent and total disability
benefits, a review of the relevant laws and recent
jurisprudence is in order.

Article 192(c) (1) of the Labor Code, which

defines permanent and total disability of
laborers, provides that:

ART. 192. Permanent Total Disability.

xxx
(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; [emphasis supplied]
The rule referred to is Rule X, Section 2 of the
Amended Rules on Employees' Compensation,
implementing Book IV of the Labor Code (IRR),
which states:

Sec. 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

12
 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 and Underscoring Supplied]

33. These provisions should be read in relation to the 2000

Philippine Overseas Employment Administration Standard
Employment Contract (POEA-SEC) whose Section 20 (B) (3)
states:
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 but in no case shall this
period exceed one hundred twenty (120) days. [

34. In Crystal Shipping, Inc. v. Natividad,10 (Crystal

Shipping) the 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."

35. Based on the inherent merits of the clashing medical

opinions, the second medical opinion deserves more credence
than the first medical opinion.

36. After all, the primordial duty of the labor tribunal and the
courts is not to accept blindly as gospel truth the opinions of

10
G.R. NO. 154798 October 20, 2005] CRYSTAL SHIPPING, INC., and/or A/S STEIN LINE
BERGEN, Petitioners, v. DEO P. NATIVIDAD, Respondent.

13
 the company doctor. Rather, they are ordained to ascertain the
real condition of the seafarer to see to it that the benefits
awarded is commensurate to his real condition and disability.

37. In fine, Respondents’ asseverations cannot simply hold

water and they deserve scant consideration.

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 EIGHT THOUSAND TWELVE US

DOLLARS (US$ 108,012.00) representing payment
of Complainant’s Total and Permanent Disability
Benefits.

2. 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 19TH day of December

2023 at the City of Manila, Philippines.

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 A. M. BURIGSAY LAW OFFICE
& ASSOCIATES
Counsel for the Complainant
Room 310, Trinity Building
Kalaw Avenue, Ermita,
Manila City
Tel No. 8564-4900
amburigsaylaw2022@gmail.com

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

Copy Furnished:

ATTY. CRESTA A. MACALALAD

Counsel for the Respondents
DEL ROSARIO AND DEL ROSARIO
LAW OFFICES
14th Floor, Del Rosario Law Centre
21st Drive Corner 20th Drive
Bonifacio Global City,
Taguig 1630

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