Republic of the Philippines

DEPARTMENT OF LABOR AND EMPLOYMENT

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

OFFICE OF THE SOLE MARITIME

VOLUNTARY ARBITRATOR
MVA DARWIN B. SANTOS

IN RE VOLUNTARY ARBITRATION
CASE BETWEEN:

MICHAEL LAWRENCE MVA-057-RCMB-NCR-

R. TALAVERA, 242-13-06-2023
Complainant,

COMPLAINT FOR PERMANENT

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

RCCL CREW MANAGEMENT,

INC., ROYAL CARRIBEAN
CRUISES CO. LTD., and
MR. GERARDO
ANTONIO BOROMEO,
Respondents.
X…………………………………X

COMPLAINANT’S
REJOINDER TO THE RESPONDENT’S
REPLY

COMES NOW, COMPLAINANT COMMIS I MICHAEL

LAWRENCE R. TALAVERA, by and through the undersigned

1
counsel, and to this Honorable Office of the Sole Maritime
Voluntary Arbitrator, by way of Rejoinder, respectfully states:

1. The Respondents claim anew in their Reply that the Company

Physician assessed a definite Grade 10 disability.

2. They, in effect, assail the second medical opinion of DR.

MAMER ROSARIO as having no definite assessment as the
said specialist of choice did not give a graded assessment.

3. Nothing is further from the truth and, with due respect,

Respondents somewhat mislead.

4. Contrary to the claim of Respondents, there is a graded

assessment of Permanent Total Disability which corresponds
to a Grade 1 Assessment.

5. The Second Medical Report bluntly states as follows:

“Based on the history and physical

examination of the patient, bilateral carpal
tunnel syndrome has progressed and signs
indicate severe disease. Surgical management
must be pursued to address present problems and
improve prognosis. I am considering Permanent
Total Disability and patient is UNFIT to work as
seafarer in any capacity due to his present
condition.”

[sgd.] MAMER S. ROSARIO,

2
 MD, MPA, FPOA, FPSS
License No. 118416

6. As per copy of the Second Medical Report, the doctor of choice

unmistakably declared Talavera being permanently and totally
unfit to work as a seafarer in any capacity.

7. Worse, the Respondents are totally skirting the relevant issue.

The Complainant’s injury and ailment, although treated,
was never completely resolved.

8. Again, at the risk of redundancy, it bears stressing that both

the Courts and Labor Tribunals are not bound by the medical
findings of the company physician.

9. It is their first and foremost duty to ascertain the real

condition of the seafarer above everything else.

10. What is more, the assessment of the company physician

cannot be ipso facto treated as the gospel truth.

11. Where there are disparate medical findings and the

seafarer has timely contested the assessment of the company
doctor by presenting a contrary second medical opinion from
the specialist of his own choice, the courts are ordained to
determine the entitlement of the claimant based on the
inherent merits of the medical reports and opinion.

3
12. Jurisprudentially, loss of earning capacity is the
controlling consideration in determining disability
compensation and not the medical significance of the injury or
illness. This basic and rudimentary legal precept in labor law
is clearly enunciated and reiterated by the Supreme Court in a
litany of decided cases.

13. Thusly:

“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.” (Pacific Ocean Manning, Inc. v.
Penales, G.R. No. 162809, September 5, 2012)

xxx

“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. A total
disability is considered permanent if it last
continuously for more than 120 days”. (MAERSK
FILIPINAS CREWING INC., et al., vs. MESINA, G.R.
NO. 200837, 5 June 2013, citing FIL-STAR

4
 MARITIME CORPORATION vs. ROSETE G.R. NO.
197680, 23 November 2011).

Xxxx

“Regarding the issue of compensability,

it has been the Court’s consistent ruling 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.” (FIL-PRIDE SHIPPING
COMPANY INC., et al., vs. EDGAR A BALASTA
G.R. NO. 193047 March 3, 2014)

14. The Respondents denigrate the injury of Complainant

banking on the assessment of the company physician that as
per POEA-SEC schedule, it only merits a Grade 10x2
disability grading.

15. The Respondents insist on the Grade 10 disability of the

company doctor as the prevailing assessment and that
disability assessment cannot be measured in the number of
days the seafarer got sick. This is not entirely correct.

16. The loss of gripping power of the hands of Michael clearly

impacts on his capability to perform his customary duties
involving food preparation. It requires Michael’s hands to have
full functionality and his ability to grapple objects with ease is
essential to his duties as cook.

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

is not the injury which is compensated, but rather it is the

5
 incapacity to work resulting in the impairment of one's
earning capacity.

18. The Respondents miserably lose sight of the fact

that, jurisprudentially, the Supreme Court has
consistently applied the Labor Code concept of Disability
among seafarers:

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

19. Here, Seafarer Michael Lawence R. Talavera (hereafter,

Michael) has been working for years with the Respondents
aboard the vessel of Respondents. The injury and ailment have
only manifested themselves while he was working aboard

1
TEODORO vs. TEEKAY SHIPPING PHILIPPINES, G.R. no. 244721, February 5, 2020.

6
 Freedom of the Seas and nowhere else. Since the touchstone
in disability compensation cases is reasonable linkage and
probability and not absolute certainty, the claim for
Permanent Total Disability is clearly warranted.

20. Crystal, Michael has developed a severe case of

bilateral carpal tunnel affecting both hands greatly
limiting the functions and grip of his hands.

21. There is also no denying that the facts also ineluctably

and readily show both his inability to perform his customary
sea duties as COMMIS 1 and the company-designated
physician's failure to definitively declare his fitness or
unfitness to work, despite the lapse of prescribed days.

22. Verily, under this factual milieu, MICHAEL, under the

law, is undoubtedly entitled to permanent and total disability
compensation.

23. 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."2

24. Fil-Star Maritime Corp. v. Rosete3 formulated the

classic definition of what constitutes permanent total
disability. Thusly:

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].

7
 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.4

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

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

26. 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 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
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.

8
 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.7

27. It is already a matter of record that while working on

board and doing his routine work, cooking in the kitchen of
the vessel in October 2021, Michael suddenly felt weak grip,
weakness, pain and numbness of both hands.

28. This could be gleaned from the June 13, 2022 Disability
Report of the private specialist, DR. MAMER S. ROSARIO, a
reputed orthopaedic surgeon. The unvarnished facts are stated
in the Disability Report (hereafter, the SECOND MEDICAL
OPINION) and in this wise:

DISABILITY REPORT
June 13, 2022

This is the case of Mr. Michael Lawrence R.

Talavera, 33/M from Cavite, right-handed, who
came in because of weak grip of both hands.

Patient started to feel numbness of both

hands while working on-board a sea vessel last
October 2021. Persistence of symptoms
eventually prompted patient to seek consult in
Florida last November 29, 2021, where working
impression of bilateral carpal tunnel syndrome
was made. Local steroid injections to both carpal
tunnels were administered, although pain and

7
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.

9
numbness on both hands progressed. Patient was
subsequently deemed unfit to continue work, and
repatriated last December 8, 2021. EMG-NCV
studies done at Manila Doctors Hospital last
January 3, 2022 revealed neuropathies of both
median nerves consistent with diagnosis of
bilateral carpal tunnel syndrome. Upon
subsequent medical evaluations in the
Philippines, surgical option was offered but no
consent was given by the patient. Physical
therapy to address symptoms was initiated last
March 2022, although problems persisted despite
patient completing two months of rehabilitative
exercises.

Patiently, patient complains of weak grip of

both hands with bilateral shooting pains along
thumb, index and middle fingers. Physical exam
shows thenar athropy of both hands, with
bilateral grip strength of 4(-)/5 on manual motor
testing. Both Phalen’s and Tinel’s tests are
positive.

DIAGNOSIS

Carpal tunnel syndrome, both hands.

S/P Physical Therapy (March to May 2022)

Based on the history and physical

examination of the patient, bilateral carpal
tunnel syndrome has progressed and signs
indicate severe disease. Surgical management
must be pursued to address present problems and
improve prognosis. I am considering Permanent
Total Disability and patient is UNFIT to work as
seafarer in any capacity due to his present
condition.

10
 [sgd.] MAMER S. ROSARIO,
MD, MPA, FPOA, FPSS
License No. 118416

29. Michael’s condition was never resolved and never

reverted to his pre-injury capacity. Notwithstanding the
medical intervention provided by the Respondents’ health
facility and provider at Neurophysiology Services of Manila
Doctors Hospital and with the duly designated company
physician, Complainant remains incapacitated to work.

30. Perforce, MICHAEL, erstwhile COMMIS 1 of FREEDOM

OF THE SEAS , suffers from Permanent Total Disability by
reason of CARPAL TUNNEL SYNDROME, BOTH HANDS 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 as provided under Article 13,
thereof which says:

“Article 13. DISABILITY COMPENSATION.

“IF A SEAFARER DUE TO NO FAULT OF HIS

OWN, SUFFERS AN OCCUPATIONAL INJURY OR
AN OCCUPATIONAL DISEASE WHILE SERVING ON
BOARD XXX AND AS A RESULT HIS/HER ABILITY

11
 TO WORK IS PERMANENTLY REDUCED,
PARTIALLY, TOTALLY AND NEVER TO BE
DECLARED FIT, THE COMPANY SHALL PAY HIM A
DISABILITY COMPENSATION WHICH INCLUDING
THE AMOUNTS STIPULATED BY THE POEA’S
RULES AND REGULATIONS SHALL BE MAXIMUM:

“RADIO OFFICERS, CHIEF STEWARDS,

ELECTRICIANS. ELECTRO TECHNICIANS---USD
110, 000.

“RATINGS----USD 90,000.

31. Michael is entitled to the maximum award in the

overriding and more beneficent provisions of the CBA.
Based on the foregoing 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.

32. Too, it is likewise respectfully submitted that Damages

and Attorneys’ Fees are recoverable as part of the judgment
award.

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

34. 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.

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

mechanism for determining the disability assessment.

36. 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.

37. As explained by the Court in Pelagio v. Philippine

Transmarine Carriers, Inc:8

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

8
G.R. No. 231773, March 11, 2019.

13
 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.

38. It was never controverted that MICHAEL 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.

39. 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.

40. There can be no question that Michael’s condition on

both hands would clearly preclude him from resuming
strenuous seafaring activities.

41. Clearly, on the inherent merits of the clashing

medical opinions, that of Dr. Rosario stands out.

14
 42. In fine, Michael 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.

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

15
 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 5TH day of October 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. ALDRICH DEL ROSARIO

DEL ROSARIO AND DEL ROSARIO LAW OFFICES
Counsel for the Respondents
DEL ROSARIO LAW CENTER,
Bonifacio Drive
Taguig City, Metro Manila

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 EXPLANATION:

Due to distance and for lack of office personnel to effect

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

ARNOLD M. BURIGSAY

17