Republic of the Philippines

DEPARTMENT OF LABOR AND EMPLOYMENT

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

OFFICE OF THE PANEL OF MARITIME

VOLUNTARY ARBITRATORS
MVA DARWIN B. SANTOS, CHAIRMAN
MVA WALFREDO D. VILLASOR, MEMBER
MVA ANTONIO SOLIVEN, JR., MEMBER

IN THE MATTER OF THE VOLUNTARY ARBITRATION

CASE BETWEEN:

SOFRONIO M. MERCADO MVA-057-RCMB-NCR-

330-19-08-2023
Complainant,

COMPLAINT FOR PERMANENT

TOTAL DISABILITY BENEFITS
---VERSUS--- WITH DAMAGES AND ATTORNEYS
FEES.

PACIFIC OCEAN MANNING, INC.,

SINGAPORE PETROCHEMICAL
CO. LTD., and MR. LIBERATO
A. CAPAYAS,

Respondents.
X……………………………………….X

COMPLAINANT’S
RESPECTFUL REPLY TO THE RESPONDENT’S
POSITION PAPER

1
 COMPLAINANT, SOFRONIO M. MERCADO 1, by and through
the undersigned counsel, and to this Honorable Panel, by way of
Reply to the Respondents’ Position Paper, most respectfully states:

1. Under the heading Prefatory Statement, Respondents’ main

arguments that will be repetitively asserted all throughout
their Position Paper were stated in this wise:

“[T]hat the Complainant should be

adjudged INELIGIBLE to (sic) his claim of
permanent/ total disability benefits
considering that the company-designated
physician has pronounced his illness,
Diabetes-Mellitus Type II to be not work-
related.

“Furthermore the company-designated

physician likewise pronounced after
treatment, the complainant seafarer to be fit
to work on 18 February 2022.

“IN FACT the Complainant himself has

confirmed himself being fit to return work
by knowingly and voluntarily signing a
Certificate of Fitness for Work.

“Clearly the Complainant has no right

to any disability compensation all the more
to permanent/or total disability
compensation.2

2. In view of the aforesaid reasons set forth in the Prefatory

Statement, the Respondents’ Position Paper readily branded
1
Seafarer-Oiler.
2
Position Paper for The Respondents at page 1 thereof.

2
 the disability claim of Sofronio as BASELESS and
UNFOUNDED claim. Respondents thus posit that the instant
Complaint deserves to be dismissed outright.

3. To this “your-complaint-is-baseless-and-unfounded”
contention made by the Respondents, the Complainant
strongly takes exception to the Respondents’ claim.

4. It is not correct to say that the present Complaint for payment

of disability benefits is both baseless and unfounded. No
assertion could have been more brazen, erroneous and none
could have been more unmeritorious than these futile
attempts of the Respondents to discredit Sofronio’s disability
claims.

5. To set the record straight, Sofronio Mercado’s claim for

permanent total disability benefits is NOT BASELESS and
UNFOUNDED as Respondents would like this Honorable
Panel to believe.

6. Based on the law, the POEA-SEC , the governing CBA between

Sofronio’s Union and the Respondents’ management, and the
credible medical findings, the award pf Permanent Total
Disability Benefits to Sofronio is clearly warranted.

7. If there is one thing that can be branded as baseless and

unfounded, it is no other than the manifestly specious

3
arguments of the Respondents. With due respect, the
Respondents arguments against Sofronio’s claim for disability
benefits are manifestly puerile when we consider the
following:

7.1. Respondents gave much emphasis on the medical

findings of the company doctor. Will the Honorable Panel
accept as Gospel Truth the opinion of the Company
Doctor? The answer is a Big No.

7.2. Firstly, the correct rule is that courts are not bound by
the medical findings. This is so because their primary
duty is to ascertain the real condition of the seafarer
claimant.

7.3. Moreover, the medical report is subject to the

requirements set by law and the POEA-SEC Rules. That
is, it must be final, definitive and timely issued, the
conclusion being supported by premises acceptable to
medical science. In other words, the examining physician
has to give supporting reasons why he concluded that
Sofronio’s diabetes is not at all work-related.

7.4. The Company Doctor failed in these considerations.

7.5. He issued a certificate of non-work relation in a terse

certificate which does not offer an explanation or reason
why, indeed, the diabetes of Sofronio is not occupational.

7.6. Respondents however also assails the merit of the

disability claim on the basis of a purported Certificate of
Fit To Work freely signed by Sofronio.
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7.7. Is this signed Certificate of Fitness a valid argument to
defeat the claim of the signatory? No.

7.8. There can be no merit to the Certificate of Fitness signed

by the seafarer as he is not the competent physician who
can assert his health and fitness.

7.9. Moreover, the Court will look askance of these odious

certificates where the only ulterior motive of the seafarer
in affixing his signature is the manning agent’s long-
winded but empty promises of future employment and
payment of material considerations to him.

7.10.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.

7.11.Under the Labor Code, permanent total disability can be

defined as follows:

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

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 justifying the extension of the
temporary total disability period,
regardless of whether or not he loses
the use of any part of his body.3

7.12.The case law on the matter has the Supreme Court

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

8. 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."4

9. Fil-Star Maritime Corp. v. Rosete5 formulated the classic

definition of what constitutes permanent total disability.

10. Thusly:

3
TEODORO vs. TEEKAY SHIPPING PHILIPPINES, G.R. no. 244721, February 5, 2020.

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].

5
677 Phil. 262 (2011) [Per J. Mendoza, Third Division].

6
 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.6

11. Conversely, it might not be amiss to state that, too,

in Belchem Philippines, Inc. v. Zafra, Jr.,7 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.8

12. 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. In the
case of Sofronio, the only reasonable inference is that
due to the rigors of his work, his diabetes is at he very
least work-aggravated.

6
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].
7
759 Phil. 514 (2015).
8
Same Case citation at page 526 thereof.

7
 13. Thus, in 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.9

14. Here, Complainant suffers permanent total disability. The

shore side foreign physician, the company doctors and the
private specialist of choice all having unanimity that Sofronio
presently suffers from hypertensive heart disease and Type 2
Diabetes Mellitus.

15. The ailments and the resulting disability both developed

and work-aggravated 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 OILER of the respondents’ vessel.

Entitlement to disability
benefits on account of
occupational disease and
ailment.

9
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.

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 16. A contract is the law between the parties, which in this
case are the CBA and the POEA-SEC.

17. 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.

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

mechanism for determining the disability assessment.

19. However, it is not only the contract between the parties

that governs the determination of the disability compensation
due the seafarer.

20. 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.

21. In Remigio v. NLRC,10 the Court held:

The standard employment contract for

seafarers was formulated by the POEA pursuant
10
521 Phil. 330 (2006).

9
 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.”

22. 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.

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

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 24. 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)

25. 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)

Here, SOFRONIO 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.

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 26. 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 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.

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

interim one because Sofronio, 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.

28. Point in fact, the metformin maintenance medications

and regular check-ups continue up to this very day. This
shows the futility of signing up for a vessel.

29. In fine, the present disability claims is well-founded and

teeming with factual and legal bases.

30. The award of Permanent Total disability benefits in

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

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 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$

110,000.00) 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 13TH day of October 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

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. EDWIN SANTOS

Kapitan Pepe
Cabanatuan City Nueva Ecija

EXPLANATION:

Due to distance and for lack of office personnel to effect

personal service, a copy of the foregoing POSITION PAPER was
served by registered mail to the respondents’ counsel.

ARNOLD M. BURIGSAY

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