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


NATIONAL CAPITAL REGION
ARBITRATION BRANCH


ABELARDO P. ZAMARRO, OFW-SEA BASED
Complainant,
NLRC OFW Case No. NCR-0 4 -0 6 2 6 2 -1 2
-versus- Hon. Labor Arbiter Joel S. Lustria

ALPHA SHIPPING MNGT., CORP.,
TS MARITIME CORP., JAPAN and
/ or JUNEL CHAN,
Respondents,
x----------------------------------x


COMPLAI NANTS POSI TI ON PAPER


COMPLAINANT ABELARDO P. ZAMARRO 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 total
permanent disability benefits, sick wages, moral and exemplary damages,
and attorneys fees in favor of herein complainant Zamarro. These claims
are based on the collective bargaining agreement between complainant
Zamarros union (All Japan Seamens Union-Associated Marine Officers

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and Seamens Union of the Philippines [JSU-AMOSUP]) on one hand, and
respondent Alpha Shipping Management Corporation (on behalf of San-E
Maritime Corporation) on the other hand [IBF JSU/AMOSUP-IMMAJ CBA
for brevity]; and other pertinent labor laws and jurisprudence.

THE PARTIES

Complainant ABELARDO P. ZAMARRO (hereinafter referred to as
Complainant Zamarro) is of legal age, Filipino, married and a resident of
Purok 6 Asiongan, Langkaan-1, Dasmarias City, Cavite. 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 ALPHA SIPPING MANAGEMENT CORPORATION,
(hereinafter referred to as Respondent Alpha) 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 its office located at 10-B Jemarsons Place 11626 Pilar
Hidalgo Lim St., Malate, Manila NCR 1000.

Respondent TS MARITIME CORP., JAPAN (hereinafter referred to as
TS Maritime) is one of the foreign principals of respondent Alpha, where
complainant Zamarro was deployed. It is based in Japan. But for purposes

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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 Alpha, its resident agent in the Philippines.

Respondent JUNEL CHAN (hereinafter referred to as Respondent
Chan) is the President/CEO/Gen.Manager/POEA Registered Contact
Person of respondent Alpha. He is of legal age, Filipino and with office
address at 10-B Jemarsons Place 11626 Pilar Hidalgo Lim St., Malate,
Manila NCR 1000, where he may be served with notices, orders and
resolutions of this Honorable Labor Arbitration Office.

STATEMENT OF THE FACTS

1. On 16 May 2011, the parties entered into a Contract of Employment
for complainant Zamarro to serve as SECOND OFFICER on board the
vessel MV LIBRE under these terms, to wit:

DURATION OF CONTRACT : Nine [9] months
POSITION : Second Officer
BASIC MONTHLY SALARY : US$936.00 plus US$54 subsist. allow.
HOURS OF WORK : 40 hrs/wk plus US$546 special allow.
OVERTIME : US$597.00/mo. (F.O.T. 105 hrs.)
VACATION LEAVE PAY : US$281.00/mo. (9 days leave pay)
POINT OF HIRE : Manila, Philippines


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The employment contract was approved by the POEA on 19 May
2011. Copy of the said Contract of Employment is hereto attached as
Annex A.

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

3. On 7 June 2011, upon instruction of respondent Alpha, complainant
Zamarro left the country to join the vessel MV LIBRE as its Second
Officer. He boarded the vessel on 8 June 2011 as shown in the
pertinent pages of complainant Zamarros Seamans Book, copy of
which is hereto attached as Annex B.

4. On 14 November 2011, five months after the commencement of his
contract of employment and while the MV LIBRE was in Tonda, Japan,
complainant Zamarro suddenly experienced severe chest pains and
difficulty in breahing. Because of this condition, the Master of MV
LIBRE prepared a Requisition For Medical Treatment form, the
necessity of which was confirmed by a certain Dr. Katsuhiro Shimizu.
According to Dr. Shimizu, complainant Zamarro had Congestive Heart

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Failure; Renal and Liver Disfunction. Complainant Zamarro was
declared unfit for duty and ordered to be immediately hospitalized.
Copy of the Requisition For Medical Treatment form is hereto
attached as Annex C.

5. The following morning, 15 November 2011, Zamarro collapsed and
fell unconscious on-board the MV LIBRE. Paralysis of the left side of
complainant Zamarros body was immediately noticed by the Master
of the vessel, a certain Capt. Ma. Complainant Zamarros case was
later on determined what is commonly known as a stroke as
hereinafter discussed. Copy of the said capatains e-mail report to
respondent TS Maritime is hereto attached as Annex D.

6. Immediately after the unconscious body of complainant Zamarro was
seen by the crew, he was brought to the Tokuyama Central Hospital
in Shunan City, Yamaguchi Prefecture, Japan. The Medical Certificate
issued by the said hospital and signed by Dr. Yuji Oada reads as
follows

This is to inform health status and illness for which above
person (herein complainant Zamarro) is now under
treatment.

This 52-year-old male had a heavy feeling in his chest from
4:00 AM 2011/11/15 and had a medical examination by a

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clinic at Shuna City (Shimizu Clinic). Shortly afterward he
developed left hemiparesis and gait disturbance. He was
introduced to our hospital at 11:00 AM. His BCG showed Af
(atrial fibrillation) and USG revealed severe cardiac failure
(BP was 18%, MR II
o
, TR III
o
). His symptom was unstable,
i.e., high blood pressure state improved his left limbs
weaknesses, however low blood pressure status aggravated
his paresis. Head MRI scan revealed right middle cerebral
artery occlusion and diffusion-weighed image showed a
high intensity area in the right insular cortex. We decided
clot removal therapy by Merel retriever (endovascular
treatment) must be effective, and treated immediately.
However, the clot was tight and we could not obtain
successful (total) recanalization. After these medical
treatments, he was admitted in our ICU (Intensive Care
Unit). On 2
nd
day after admission his CT scan revealed right
incular cortex and partial temporal lobe infarction. He
shows left upper and lower limbs severe motor
weaknesses. His vital sign is stable, however intensive care
is still required. He needs 2 or 3 weeks treatment on
admission for his brain and heart. And after all, long time
rehabilitation will be needed.

Certified by Yuji Ueda MD.
Date 2011/11/16
(Signature)

Copy of the said Medical Certificate is hereto attached as Annex E.

7. After two weeks of confinement at the Tokuyama Central Hospital in
Japan, a Follow-up Report dated 30 November 2011 was prepared by
Dr. Yuji Ueda, MD, PhD., which stated as follows

To whom it may concern,

Mr. Abelardo P. Zamarro is a 52-year-old male, who had
complained general fatigue and palpitation since 4:00 AM

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2011/11/15 and had a medical examination by a clinic at
Shuna City (Shimizu Clinic). Shortly afterward he developed
left hemiparesis and gait disturbance. He was introduced to
our hospital at 11:00 AM. His ECG showed Af (atrial
fibrillation) and USG showed severe cardiac failure (EF was
18%, MR
o
TR
o
). His neurological symptom was unstable i.e.,
high blood pressure state improved his left limbs motor
weaknesses, however low blood pressure status aggravated
his paresis. Head MRI scan revealed right middle cerebral
artery occlusion and diffusion-weighed image showed a
high-intensity area in the right insular cortex. We had
decided clot removal therapy by Merci reriever
(endovascular treatment) might to (sic) be effective, and
treated immediately. However the clot was tight and we
could not obtain successful (total) recanalization. After
these medical treatments, he has admitted in our ICU
(Intensive Care Unit). On 2
nd
day after admission his CT scan
revealed right insular cortex and partial temporal lobe
infarction. He showed left upper and lower limbs severe
paresis. Then he has been transferred to a ward of internal
medicine (Dr. Iwami) for treatment of heart failure. 2 weeks
later, his heart condition has been much better to be back
(to) his country by air, however severe left cerebral
paralysis remained. We hope he will receive appropriate
rehabilitation and anticoagulation drug onward. If you have
any question concerning the detail of his therapy, please
feel free to contact me at the email address below.

Yours sincerely,

Yuji Ueda, MD., PhD.,
ymaueda@bronze.ocn.ne.jp

Tokuyama Central Hospital Department of Neurosurgery
(Stroke Care Center)
Kohda cho 1-1, Shuna City, Yamaguchi Pref.
Japan 745-8522
Tel. +81-834-28-4411 Fax +81-834-29-2579


Copy of this medical history introduction form is hereto attached as
Annex F.

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8. Complainant Zamarro was confined in the Tokuyama Central Hospital
from 15 November 2011 until about 9 December 2011. Upon
discharge for medical repatriation and further treatment in the
Philippines, the Cardiology Department of the said hospital prepared
Introduction Form for our local doctors, containing a medical history
during complainant Zamarros admission and confinement Japan.
The medical history in the introduction form provided as follows

The following is the medical history of the patient listed
above.

Mr. Zamarro Abelardo is a 52-year-old male sailor man,
who consulted our hospital at 11:00 AM on November 15
th

because of breathless and left hemiplegia from 4:00 AM the
same day. On admission, Chest X ray showed cardiac
enlargement and pulmonary congestion. Electrocardiogram
showed atrial fribrillation (AF). Echocardiogram showed left
ventricular enlargement with severe systolic impairment
(left ventricular end-diastolic dimension: 58mm, left
ventricular ejection fraction: 18%), diffuse reduction of left
ventricular motion and moderate to severe mitral and
tricuspid insufficiency. Head MRI scan showed right middle
cerebral artery occlusion with cerebral infarction. These
findings let us diagnose cerebral embolism due to AF and
chronic heart failure. We started to administer heparin
sodium, carperitide and isosorbide dinitrate by intravenous
infusion in order to maintain the good hemodynamic status
during acute phase treatment of cerebral infarction by our
neurosurgeon. Afterward we exchanged to oral medicine
because his condition was improved.

His medication is as below.

Rp.

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1) enalarpil maleate 5 mg, carvedilol 2.5 mg, isosorbide
mononitrate 20 mg, famotidine 20mg, twice daily;
2) spironolactone 25mg, azosemide 60mg, aspirin 100mg,
warfarin 2mg, once daily.

xxxx xxxx xxxx

Takihiro Iwani, MD
Division of Cardiology,
Tokuyama Central Hospital,
1-1 Koda, Shunan, Yamaguchi
745-8522, Japan


Copy of this medical history introduction form is hereto attached as
Annex G.

9. Complainant Zamarro was repatriated to the Philippines on 9
December 2011. He was immediately taken to the Emergency Room
(ER) of the Saint Lukes Medical Center for treatment. The Initial
Medical Report dated 10 December 2012 at the Saint Lukes Medical
Center stated as follows

REPORT: 1
st
(Emergency admission)

Patient came in from abroad last night and was taken
to the emergency room. He is a diagnosed case of Stroke
(Brain Attack) who was eventually admitted. Medical
reports from abroad stated that he suffered stroke 3 weeks
ago and was confined at a medical facility in Japan. Initial
physical examinations findings revealed a conscious
coherent patient, non-ambulatory with a paralyzed left
upper limb and a very weak lower limb. Diagnostic
procedures done in Japan showed a very weak heart. He

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was subsequently referred to a neurologist (brain specialist)
and a cardiologist (heart specialist).

Today, he was also referred to rehab specialist.
Further diagnostic procedures and laboratories are
scheduled today. He is closely monitored for any signs or
symptoms of clinical deterioration.

IMPRESSION/DIAGNOSIS:

STROKE
HYPERTENSIVE CARDIOVASCULAR DISEASE
VALVULAR HEART DISEASE

RECOMMENDATION/PLAN:

Further diagnostic procedures and laboratories (2D
Echo and holter monitoring)
Plan for rehab therapy

MEDICATIONS: As ordered

(Signed.)
ELPIDIO C. NOLASCO, MD


Copy of this Initial Medical Report from St. Lukes Medical Center is
hereto attached as Annex H.

10. Dr. Elpidio E. Nolasco of the St. Lukes Medical Center also prepared
the 2
nd
, 3
rd
, and 4
th
, Medical Report until complainant Zamarro was
discharged from confinement on 20 December 2011. In the ensuing
reports, the following impressions persisted: [a]. Stroke; [b].
Hypertensive Cardiovascular Disease; [c]. Atrial Fibrillation,

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incomplete right bundle branch block (heart); [d]. Cardiomyopathy
(strongly considered); and [e]. Azotemia (impaired kidney function).

11. Upon his discharge, complainant Zamarro was to continue [a]. rehab
theraphy; and [b]. medications. Copy of the 2
nd
, 3
rd
, and 4
th
, Medical
Reports from the St. Lukes Medical Center are hereto attached as
Annexes I, J and K respectively.

12. Upon his discharge from St. Lukes Medical Center, complainant
Zamarro onviously remained sick as his symptoms continued. He had
to continue rehab therapy and medications. He also felt that his
discharge was premature, most likely to avoid greater costs to
respondent Alpha. Proof that respondent Alpha was actually trying to
avoid further costs was the fact that when complainant Zamarro filed
a claim for Social Security System (SSS) benefits; respondent Alpha
thru respondent Chan reported the actual medical condition of
complainant Zamarro. However, respondent Chan also stated that
respondent Alpha was not giving sickwages to complainant Zamarro
alleging that the latter was not entitled thereto, inspite of the
pertinent provisions of the IBF JSU/AMOSUP-IMMAJ CBA covering
the vessel of assignment as well as the POEA Standard Contract
concerning the payment of Sickwages.

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Copy of the Accident/Illness Report filed at the SSS consisting of two
pages is hereto attached as Annex L to L-1.

13. Not only did respondents refused payment of sickwages; they
likewise refused payment of the total and permanent disability pay of
complainant Zamarro based on the IBF JSU/AMOSUP-IMMAJ CBA
when the said complainant asked for such payment. Complainant
Zamarro knew and felt that being a half paralyzed man now, he can
never again work as a seafarer on-board international vessels. Hence,
complainant Zamarro sought a categorical statement regarding his
medical condition from a specialist in Internal Medicine and
Cardiology at Philippine Heart Center. Complainant Zamarro
consulted Dr. May S. Donato-Tan, MD, FPCP, FPCC, a specialist in
Internal Medicine and Cardiology.

14. Dr. May S. Donato-Tans findings, inter alia, provided as follows

Disability Claim:

Based on the history, physical examination and
laboratory examination, the patient suffered from HACVD, HPN
Stage II, and S/P CVA Cerebral Infarct 2 degree embolism 2
degree to Atrial Fibrillation and the occurrence of Azotemia
secondary to Hypertensive Atherosclerotic Cardiovascular
Disease. Patient needs continuous monitoring and medications
to prevent recurrence and progression of his signs and

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symptoms that triggered his CEREBRO-CARDIOVASCULAR
ACCIDENT (CVA). Lifestyle modification is also advised. He is
also advised to see his cardiologist and nephrologist on a
regular basis to prevent recurrence of his condition, especially
his CVA. HIS PERSISTENT CONDITIONS HINDER HIM FROM
SUFFICIENTLY PERFORMING HIS WORK AS A SEAMAN. HE IS
THEREFORE GIVEN PERMANENT DISABILITY AND DECLARED
UNFIT FOR DUTY IN WHATEVER CAPACITY AS A SEAMAN.
(Capitalization supplied.)

(Signed.)
MAY S. DONATO-TAN, MD, FPCP, FPCC
Lic. No. 45904
PTR No. 5075644


Copy of Dr. May S. Donato-Tans medical report is hereto attached as
Annex M with sub-annex M-1.

15. By reason of respondents refusal and failure to pay the total
permanent disability benefits of complainant Zamarro, he filed the
instant case against respondents. Attempts to arrive at a settlement
failed, hence, this Position Paper is now filed.

ISSUES TO BE RESOLVED

[a]. Whether or not complainant Zamarro is entitled to payment of
Permanent Total Disability Benefits and Sickwages under the
IBF-JSU/AMOSUP-IMAAF Collective Bargaining Agreement
(CBA); and

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[b]. Whether or not complainant Zamarro is entitled to payment of
moral and exemplary damages, and attorneys fees.

ARGUMENTS AND DISCUSSIONS

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

Complainant Zamarro submits that being a Senior Officer, he is
entitled to be paid, among others, his total permanent disability benefits
of One Hundred Forty-Eight Thousand and Five Hundred US Dollars
[US$148,500.00] under Collective Bargaining Agreement, copy of which is
hereto attached as Annex N.

Complainant Zamarro is claiming total permanent disability benefits
since, as discussed above, he is incapacitated to work for more than 120
days from date of his repatriation; and continues to be unfit and
incapacitated up to present; with all factual indications pointing to remain
incapacitated for the rest of his life.


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Complainant Zamarro is entitled to [a]. Sickwages of at least 130
days basic pay; and [b]. Total Permanent Disability pay of US$148,500.00
based on the IBF-J SU/ AMOSUP-IMAAF Collective Bargaining Agreement
(CBA).

Article 26 of the IBF-JSU/AMOSUP-IMAAF Collective Bargaining
Agreement (CBA) provides, inter alia, that

Article 26: Sick Pay

xxxx xxxx xxxx

26.2 Thereafter the seafarers shall be entitled to sick pay at
the rate equivalent to their basic wage while they remain
sick up to a minimum of sixty (60) days and a maximum
of one hundred and thirty (130) days.

26.3 However, in the event of incapacity due to an accident
the basic wages shall be paid until the injured seafarer
has been cured or until a medical determination is made
in accordance with clause 28.2 concerning permanent
disability.

xxxx xxxx xxxx


On the other hand, Article 28 of the IBF-JSU/AMOSUP-IMAAF
Collective Bargaining Agreement (CBA) provides, inter alia, that

Article 28: Disability

28.1 A seafarer who suffers permanent disability as a result of
an accident whilst in the employment of the company

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regardless of fault, including accidents occurring while
travelling to or from the ship, and whose ability to work
as a seafarer is reduced as a result thereof, but excluding
permanent disability due to willful acts, shall in addition
to sickpay, be entitled to compensation according to the
provisions of this agreement.

xxxx xxxx xxxx

Appendix 3 of the IBF-JSU/AMOSUP-IMAAF Collective Bargaining
Agreement (CBA) provides that the compensation for total and permanent
disability of Senior Officers is US$148,500.00; as in the case of complainant
Zamarro who is a Second Officer.

In addition to all factual indications pointing that complainant
Zamarro will remain incapacitated for the rest of his life, the disability of
complainant Zamarro is total and permanent on account of the application
of law and jurisprudence to such factual indications as hereinafter
discussed further.

The latest word of the Supreme Court on this matter is the case of
MAGSAYSAY MARITIME CORPORATION, ET. AL., v. OBERTO S. LOBUSTA,
(25 January 2012, G.R. No. 177578). In that case, the Supreme Court re-
affirmed its previous rulings concerning the determination of total and
permanent disability, to wit

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Petitioners are mistaken that it is only the POEA Standard
Employment Contract that must be considered in determining
Lobusta's disability. In Palisoc v. Easways Marine, Inc.,
25
we said
that whether the Labor Codes provision on permanent total
disability applies to seafarers is already a settled matter.
In Palisoc, we cited the earlier case of Remigio v. National Labor
Relations Commission
26
where we said (1) that the standard
employment contract for seafarers was formulated by the POEA
pursuant to its mandate under Executive Order No. 247
27
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; (2) that Section 29 of the 1996 POEA Standard
Employment Contract itself provides that 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 conventions, treaties and covenants
where the Philippines is a signatory; and (3) that even without
this provision, a contract of labor is so impressed with public
interest that the 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.
28

In affirming the Labor Code concept of permanent total
disability, Remigio further stated:

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 disability compensation, it is not the injury which is

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compensated, but rather it is the incapacity to work resulting
in the impairment of ones earning capacity.

The same principles were cited in the more recent case
of Crystal Shipping, Inc. v. Natividad. In addition, the Court
cited GSIS v. Cadiz and Ijares v. CA 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.
x x x x
These facts clearly prove that petitioner was unfit to work
as drummer for at least 11-13 months from the onset of his
ailment on March 16, 1998 to 8-10 months after June 25,
1998. This, by itself, already constitutes permanent total
disability. x x x
29

In Vergara v. Hammonia Maritime Services, Inc.,

we also said that
the standard terms of the POEA Standard Employment Contract
agreed upon are intended to be read and understood in accordance
with Philippine laws, particularly, Articles 191 to 193 of the Labor
Code, as amended, and the applicable implementing rules and
regulations in case of any dispute, claim or grievance.
Thus, the CA was correct in applying the Labor Code provisions in
Lobustas claim for disability benefits. The Labor Arbiter erred in
failing to apply them.
Article 192(c)(1) under Title II, Book IV of the Labor Code, as
amended, reads:

ART. 192. Permanent total disability. x x x
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 (120) days, except as otherwise
provided in the Rules;
x x x x

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Section 2(b), Rule VII of the Implementing Rules of Title II, Book IV
of the Labor Code, as amended, or the Amended Rules on Employees
Compensation Commission (ECC Rules), reads:

Sec. 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.


Complainant Zamarros claim is likewise in accord with the 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.

In this case, the accident (Cerebro-Cardiovascular Accident [CVA] or
Stroke) was work-related since the same was sustained in the course of
duty. The resulting illnesses were 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.

There is an accident because the occurrence of the stroke was sudden
and unforeseen. It instantaneously happened in the course of the voyage.

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It was a streak of light abruptly disrupting the normal events on the life of
complainant Zamarro while working on the vessel.

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 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

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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 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

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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
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

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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.


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

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

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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 ten percent [10%]
of the total award in favor of complainant Zamarro.

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. TP Disability Benefits = US$ 148,500.00 US Dollars
2. Moral damages = PhP 500,000.00 PH. Pesos
3. Exemplary damages = PhP 500,000.00 PH. Pesos
4. Sickwages (130 days basic) = US$ 4,056.00 US Dollars
5. Attorneys Fees equivalent to 10% of total award
= US$ 14,850.00 US Dollars; and
= PhP 100,000 PH. Pesos
= PhP 405.80 US Dollars

Other reliefs just and equitable are respectfully sought.
RESPECTFULLY SUBMITTED.
Santa Cruz, Laguna for Quezon City, ____________________ 2012.


Atty. EMMANUEL E. SANDICHO
Counsel for the Complainant
117 P. Guevarra St., Santa Cruz, Laguna
IBP No. 848920, 01.06.2012, Manila-IV
PTR No. 8163771, 02.05.2012, Laguna
Roll No. 42246 admitted on 9 May 1997
MCLE Compliance No. III-0020564

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

VERIFICATION & CERTIFICATION

I, ABELARDO P. ZAMARRO, of legal age, Filipino, married and resident
of Purok 6 Asiongan, Langkaan-1, Dasmarias City, Cavite, 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.


ABELARDO P. ZAMARRO
Affiant

SUBSCRIBED AND SWORN to before me this 27 April 2012 in Quezon
City by affiant with Seamans Book No. B0658302 issued at Manila on 16
Jan. 2009 and valid until 15 Jan. 2014.



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 Makati and Gil Puyat Avenues
Makati City, Metro Manila


Received by:

Signature : _________________
Name : _________________
Position : _________________
Date : ________________