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Republic of the Philippines
Department of Labor and Employment
NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City


RI CHARD C. REYES,
Complainant, NLRC CASE NO. NCR 02-02283-12
Hon. Labor J ennet h B. Napi za
- versus

MARLOW NAVI GATI ON PHI LS.,
I NC., MARLOW NAVI GATI ON
CO. LTD., & EDGAR S. GELI TO,
Respondents.
x---------------------------------x



COMPLAINANTS POSITION PAPER



COMPLAINANT RICHARD CAMANGOY REYES by undersigned
counsel, respectfully submits this Position Paper, constitutive of
his causes of action against the respondents, to wit


STATEMENT OF THE CASE


This is an action asking for payment by respondents of the
permanent total disability benefits, damages and attorneys fees
in favor of herein complainant Richard C. Reyes. These claims are
based on the POEA Standard Contract For Seafarers On-Board
Ocean-Going Vessels; and other pertinent labor laws and
jurisprudence.


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THE PARTIES

Complainant Richard C. Reyes (hereinafter referred to as
complainant Reyes) is of legal age, Filipino, married and a
resident of 945 Pantua Village, Koronadal City, South Cotabato
9506. He can be served with notices, orders, resolutions and
other processes of this Honorable Labor Arbitration Branch at the
address of his undersigned counsel.

Respondent MARLOW NAVIGATION PHILIPPINES, INC.
(hereinafter referred to as respondent Marlow Phils.) is a
Philippine corporation operating as a manning agency engaged in
the recruitment and placement of seafarers for deployment
abroad to their foreign principals. It may be served with
summons, orders, resolutions and other processes of this
Honorable Office at Marlow Bldg., 2120 Leon Guinto Street,
Malate, Manila NCR.

Respondent MARLOW NAVIGATION CO. LTD. (hereinafter
referred to as respondent Marlow Intl.) is one of the foreign
principals of respondent Marlow Phils., where complainant Reyes
was deployed. It is based in Cyprus, but for purposes of being
sued and notified in the Philippines, service of notices, orders
and resolutions of this Honorable Office can be done at the office
of respondent Marlow Phils., its resident agent in the Philippines.


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Respondent EDGAR S. GELITO (hereinafter referred to as
respondent Gelito) is the President/CEO/Gen. Manager/POEA
Registered Contact Person of respondent Marlow Phils.. He is of
legal age, Filipino and with office address at Marlow Bldg., 2120
Leon Guinto Street, Malate, Manila NCR where he may be served
with notices, orders and resolutions of this Honorable Labor
Arbitration Office.

STATEMENT OF THE FACTS


1. On 25 February 2011, the parties entered into a Contract of
Employment for complainant Reyes to serve as a Messman-
Steward on board the vessel MV JUEMME TRADER under
these terms, to wit:

Duration of Contract : Ten [10] months
Position : MESSMAN STEWARD
Basic Monthly Salary : US$ 450.00 per month
Hours of Work : 44 hours per week
Overtime : US$ 2.70 per hour
Vacation Leave Pay : 4.5 days (US$ 67.50 per month)
Point of Hire : Manila, Philippines

Copy of contract of employment is attached as Annex A.


2. Prior to the signing of the above-mentioned contract,
respondent Marlow Phils. sent complainant Reyes to its
accredited medical clinic for pre-employment medical
examination. Complainant Reyes was found fit for duty prior
to his employment. Hence, he was hired by respondents.

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3. On 07 march 2011, upon instruction of respondent Marlow
Phils., complainant Reyes left Manila on a flight to join the
vessel MV JUEMME TRADER (Registry: St. Johns; Official No.
3834; G.T. 25,355) which was then situated in Antwerp,
Belgium. He arrived in Antwerp on 09 March 2011 and
boarded the vessel on the same day. Copy of the pertinent
page of complainant Reyess Seamans Book is hereto
attached as Annex B

4. Complainant Reyes served on-board the MV JUEMME
TRADER from 09 March 2011 until 06 August 2011 when he
was repatriated to the Philippines for medical treatment as
shown in Annex B.

5. The events that preceded complainant Reyess repatriation
brought serious injuries in his lumbar (spinal/vertebral)
part of his body. In the morning of 13 July 2011,
complainant Reyes was on duty, physically carrying
provisions for the vessel which he had to stack-up in the
fore-area of the beverage provisions store, as the store was
then sealed. The provisions included among others, more
than fifty (50) cases of mineral water and about another
fifty (50) cases of beer. Immediately the following day (14
July 2011) when the store was already open, the Captain
ordered complainant Reyes to transfer, clean, carry and re-
arrange these provisions inside the beverage store.

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6. After two (2) days or on 16 July 2011, complainant Reyes
woke-up after midnight (0230 hrs.) un-able to rise-up
because of extreme pain in his back (spinal area). He tried
to stand-up to control the pain, thinking that it was just
muscle pain. But when he bowed his head, the pain became
worse as it radiated to his legs. Streaks of burning sensation
rushing down from his spine. He fell back in a chair, almost
shouting in agony, struggling to breathe. Complainant Reyes
applied pain relieving ointment. But the hurting stayed.

7. Complainant Reyes informed the Captain of his condition at
the first immediate opportunity. He requested for a possible
consultation with a Doctor when the ship reached Jedah. But
the Captain (named, Mirel Liliu Ignat) opined that it was
better that he be checked-up in a hospital in Genoa, Italy.

8. On or about 04 August 2011 in Genoa, Italy, complainant
Reyes was examined at the Servizi Sanitari Maritimi
hospital. The attending physician was Dr. Federico Baracco.
The diagnosis was Probable Discal Hernia, L4/L5. It was
found that repatriation of complainant Reyes was necessary
as he was un-able to work; and that CT-Scan or MRI of the
Lumbar Spine must be performed. Copy of the Medical
Examination report is hereto attached as Annex C.


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9. As shown in his Seamans Book, complainant Reyes was
repatriated on 06 August 2011. He arrived in the Philippines
on 07 August 2011. He was examined at the Manila Doctors
Hospital at U.N. Avenue, Manila the following day, 08 August
2011 upon request for medical attendance by respondent
Marlow Phils. Copy of the official request for such medical
attendance signed by Capt. Leopoldo C. Tenorio (CEO-
Operations, Marlow Phils.) is hereto attached as Annex D.

10. Two (2) X-Ray examinations were conducted on
complainant Reyes at the Manila Doctors Hospital. The first
one on 08 August 2011 and the second one on 16 August
2011. The results were as follows:

08 August 2011:
SPONDYLOLISTHESIS OF L5 OVER S1, LIKELY
SPONDYLOLYTIC. PREDISPOSITION TO LUMBOSACRAL
INSTABILITY.

16 August 2011:

COMPLIMENTARY VIEW OF THE LUMNOSCARAL SPINE
RADIOGRAPHIC STUDY DATED 08 AUGUST 2011
SHOWS CORTICAL IRREGULARITY IN THE L5 PARS
INTERARTICULARIS IN BOTH OBLIQUE VIEWS
DENOTING SPONDI LOLYSI S.

Copy of the two (2) X-Ray Results are hereto attached as
Annexes E and F.

11. The results clearly showed that the discs clinically
designated as L5-S1 in the Lumbosacral Spine of

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Complainant Reyes are suffering from Spondilolysis, an
irregular painful condition sustained by him in the course of
his performance of duty as Messman-Steward on-board the
vessel MV JUEMME TRADER whilst in the employ of
respondents.

12. Complainant Reyes applied for Sickness Benefits at the
Social Security System and was further examined by Dr. Joy
Ella Buella Barrameda on 09 November 2011. The final
diagnosis by Dr. Barrameda is Lumbar Disc
Spondilolithesis L5-S1. This confirmed the results of the
examinations conducted at the Manila Doctors Hospital.
Complainant Reyes is clearly unfit to further serve in his line
of work as a Messman-Steward on-board any ocean-going
vessel. Copy of the Medical Certificate signed by Dr. Joy Ella
Buella Barrameda is hereto attached as Annex G.


13. Based on these circumstances attendant to the physical
condition of complainant Reyes, it is very clear that his
condition will require lifetime periodic treatments and
maintenance. It is very obvious that he can no longer
perform his usual duties as a seafarer on-board the vessels
of respondents and other manning agencies or foreign
principals. Thus in a Certification dated 9 November 2011,
respondent Marlow Phils., considered complainant Reyes as
having been separated from respondents company/ies as

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of 07 August 2011. Marlow Phils., however opted to simply
provide sickness allowance to complainant Reyes in the
amount of US$975.00, ostensibly for the period 07 August
2011 to 10 October 2011. Respondents obviously were
trying to suppress the fact that complainant Reyess
condition lasted more than 120 days from dates of accident,
injury, and repatriation and continues to exist indefinitely
up to the present.

14. Payment of total permanent disability benefits however, was
withheld and/or denied by respondents Marlow Phils., and
Marlow Intl., and respondent Gelito. This is obviously
inconsistent with the POEA Standard Contract for Seafarers
as well as existing laws and jurisprudence on seafarers and
employees disability benefits.

15. Previous efforts to arrive at an early settlement of the
claims of complainant Reyes were refused and denied by
respondents. Hence, complainant Reyes instituted the
instant case before this Honorable Labor Arbitration Office
of the NLRC. Further efforts to settle during the mandatory
conferences likewise failed, therefore the submission of this
Position Paper became necessary in order to ventilate and
resolve the said claims in accordance with appropriate
provisions of law, contract, regulations and jurisprudence.


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ISSUES TO BE RESOLVED

[a]. Whether or not complainant Reyes is entitled to payment of
Permanent Total Disability Benefits; and
[b]. Whether or not complainant Reyes is entitled to payment of
moral and exemplary damages, and attorneys fees.


ARGUMENTS AND DISCUSSIONS

Complainant Reyes thru undersigned counsel respectfully
submits in the affirmative for all the issues.

Complainant Reyes submits that he is entitled to be paid,
among others, his total permanent disability benefits of Sixty
Thousand US Dollars [US$60,100.00] under the POEA Standard
Contract of Employment for Seafarers On-board Ocean-going
Vessels.

This claim is in accord with the consistently upheld doctrinal
rulings in Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R.
No. 154798, 20 October 2005] and Bernardo Remigio v. NLRC, Et
Al., [G.R. No. 159887, 12 April 2006], as well as subsequent
jurisprudence maintaining the said rulings, notwithstanding the
revisions made in the POEA Standard Contract.


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It is very clear that the illness was sustained in the course
of employment and undeniably in the performance of duty.
Section 20 [B] of the POEA Standard Contract provides

B. COMPENSATION AND BENEFITS FOR INJURY
OR ILLNESS

The liabilities of the employer when the
seafarer suffers work-related injury or illness
during the term of his contract are as follows:

1. The employer shall continue to pay the
seafarer his wages during the time he is on
board the vessel;

2. If the injury or illness requires medical and/or
dental treatment in a foreign port, the employer
shall be liable for the full cost of such medical,
serious dental, surgical and hospital treatment
as well as board and lodging until the seafarer is
declared fit to work or to be repatriated.

However, if after repatriation, the seafarer still
requires medical attention arising from said
injury or illness, he shall be so provided at cost
to the employer until such time he is declared fit
or the degree of his disability has been
established by the company-designated
physician.

3. 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 xxx xxx

4. Those illnesses not listed in Section 32 of this
Contract are disputably presumed as work-
related.

5. Once signed off from the vessel for medical
treatment, the employer shall bear the full cost
of repatriation in the event the seafarer is
declared (1) fit for repatriation; or (2) fit to
work but the employer is unable to find
employment for the seafarer on board his former
vessel or another vessel of the employer despite

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earnest efforts.

In case of permanent total or partial disability of
the seafarer caused by either injury or illness
the seafarer shall be compensated in accordance
with the schedule of benefits enumerated in
Section 32 of his Contract. Computation of his
benefits arising from an illness or disease shall
be governed by the rates and the rules of
compensation applicable at the time the illness
or disease was contracted.

In this case, the illness was work-related since the same
was sustained in the course of duty. Said illness was not pre-
existing since complainant underwent the mandatory pre-
employment medical examination before he was employed by
respondent, and was found to be fit and given a clean bill of
health prior to his employment.

In Crystal Shipping, Inc. Et Al., v. Deo P. Natividad, [G.R. No.
154798, 20 October 2005], the Supreme 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. As gleaned from the
records, respondent was unable to work from
August 18, 1998 to February 22, 1999, at the
least, or more than 120 days, due to his medical
treatment. This clearly shows that his disability
was permanent.

Total disability, on the other hand, means the
disablement of an employee to earn wages in
the same kind of 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 attainments could do. It does not mean
absolute helplessness. In disability
compensation, it is not the injury which is
compensated, but rather it is the incapacity to

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work resulting in the impairment of ones
earning capacity.

The ruling in the Crystal Shipping Case is a refinement of
earlier decisions, viz

In the case of the Philippine Transmarine
Carriers, Inc. vs. NLRC. 358 SCRA 47, the
Supreme Court held 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 person of his mentality and attainment
could do. It does not mean absolute helplessness
(ECC vs. Edmund Sanico, 321 SCRA 268: GSIS vs.
CA 285 SCRA 430; GSIS vs. CA 260 SCRA 133:
Bejerano vs. ECC, 205 SCRA 598).

In disability compensation, it is not the injury
which is compensated, but rather it is the
incapacity to work resulting in the impairment of
ones earning capacity (Bejerano vs. ECC 205
SCRA 598: Ulibas vs. Republic, 83 SCRA 819;
Roma vs. WCC, 80 SCRA 170).

One should always remember that the POEA
Standard Employment Contract for Seamen 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 (Wallem Maritime
Services, Inc. vs. NLRC 318 SCRA 632).


The ruling in the Crystal Shipping case was maintained,
reinforced and more clearly expounded in the case of Bernardo
Remigio v. NLRC, Et Al., [G.R. No. 159887, 12 April 2006] when

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this Honorable Court, acting through then Associate Justice [later
on Chief Justice] Renato Puno, included the application of the
concept of Permanent Total Disability under the Labor Code in
favor of the sick or injured seafarer in addition to the provisions
of the POEA Standard Employment Contract for seafarers. The
ruling in the said case reads as follows:

Second. Is the Labor Code's concept of
permanent total disability applicable to the case
at bar? Petitioner claims to have suffered from
permanent total disability as defined under
Article 192(c)(1) of the Labor Code, viz:

Art. 192 (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;
x x x

Petitioner likewise cites Vicente v. ECC1[35]
and Abaya, Jr. v. ECC,2[36] both of which were
decided applying the Labor Code provisions on
disability benefits. Private respondents, on the
other hand, contend that petitioner erred in
applying the definition of permanent total
disability under the Labor Code and cases
decided under the ECC as the instant case
involves a contractual claim under the 1996
POEA SEC.

Again, we rule for petitioner.

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.3[37]
Section 29 of the 1996 POEA SEC itself provides
that [a]all 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

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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."4[38]

Thus, the Court has applied the Labor Code
concept of permanent total disability to the case
of seafarers. In Philippine Transmarine Carriers
v. NLRC,5[39] 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,6[40] GSIS v. CA,7[41] and Bejerano v.
ECC8[42] 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,9[43] 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.


The law does not require that a seafarer be totally paralyzed
or be an invalid resigned to his wheelchair or bed, in order to
claim total permanent disability benefits. Jurisprudence laid
down reasonable parameters to determine a claim for
permanent-total disability benefits. The following time-honored
principles were re-affirmed in the fairly recent case of
CARMELITO N. VALENZONA, petitioner, Vs. FAIR SHIPPING

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CORPORATION AND/OR SEJIN LINES COMPANY LIMITED,
respondents, [G.R. No. 176884, October 19, 2011], thus

"Permanent disability refers to the inability of
a worker to perform his job for more than 120
days, regardless of whether he loses the use of
any part of his body. What determines petitioner's
entitlement to permanent disability benefits is his
inability to work for more than 120 days."
[1]
On
the other hand, "[p]ermanent 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. I t does not
mean absolute helplessness."



Complainant Reyes is entitled to moral and exemplary
damages, and attorneys fees.

On account of respondents refusal to pay complainant what
is clearly due to him, which act manifests evident bad faith on
their part, respondents must likewise be ordered to pay moral
damages in favor of complainant Reyes who, in addition to his
sickness, also suffered serious anxiety, sleepless nights,
wounded feelings and loss of appetite. Such moral damages must
amount to at Five Hundred Thousand Pesos [Php500,000.00]
Philippine currency.

In order to serve as a lesson to the general public and
prevent further commission of the same or similar acts injurious

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to complainant, respondents must likewise be ordered to pay
exemplary damages of at least Five Hundred Thousand Pesos
[Php500,000.00] Philippine currency.

Since it was respondents act of refusing to pay
complainants disability benefits which forced the latter to
litigate, respondents must likewise be ordered to pay attorneys
fees equivalent to at least ten percent [10%] of the total award
in favor of complainant Reyes.

R E L I E F
WHEREFORE, premises considered, it is respectfully asked of
this Honorable Labor Arbitration Office that the following be
awarded in favor of complainant by ordering respondents to pay -

1. T.P. Disability Benefits = US$ 60,000.00 Dollars
2. Moral damages = PhP 500,000.00 Pesos
3. Exemplary damages = PhP 500,000.00 Pesos
4. Attorneys Fees equivalent to 10% of total award
= US$ 6,000.00 Dollars; and
= PhP 100,000 Pesos

Other reliefs just and equitable are respectfully sought.

RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, 31 March 2012.

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At t y. EMMANUEL E. SANDI CHO
Counsel for the Complainant
117 P. Guevarra St., Santa Cruz, Laguna
IBP No. 848920, 01.02.2011, ManilaIV
PTR No. 8163771, 02.02.2011, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0020564


Republic of the Philippines ]
Quezon City, Metro Manila ] s.s.

VERIFICATION & CERTIFICATION

I, RICHARD C. REYES, of legal age, Filipino, married and
resident of 945 Pantua Village, Koronadal City, South Cotabato
9506, after having been sworn in accordance with law, depose
and state that

I am the complainant in the above captioned case; I have
caused the preparation and filing of the foregoing Position
Paper; I have read and understood the same; I certify that
the declarations therein are true and correct of my own
personal knowledge and on the basis of authentic records.

I have not commenced any action or proceeding involving
the same issues before any other court, agency or
tribunal. To my personal knowledge, no such action or
proceeding is pending before any other court, agency or
tribunal. In the event I come to know of any other pending
action to that effect, I undertake to inform this office
within five [5] days thereafter.

IN WITNESS WHEREFORE, I hereto affixed my signature this
_____________2012 in Quezon City.


RICHARD C. REYES
Affiant

SUBSCRIBED AND SWORN to before me this
__________2012 in Quezon City by affiant with Seamans Book
No. B03362729 issued at Manila on 01 March 2011 and valid until
01 March 2016.


Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2012.

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Copy furnished

DEL ROSARIO & DEL ROSARIO LAW
15
th
Floor Pacific Star Building
Corner of Sen. Gil Puyat & Makati Ave.,
Makati City 1200 Metro Manila


Received by

Signature : ___________________________
Name : ___________________________
Position : ___________________________
Date : ___________________________